Citation Nr: 21027153 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 05-37 706 DATE: May 4, 2021 REMANDED Entitlement to a rating higher than 10 percent for painful loss of right knee range of motion is remanded. Entitlement to a rating higher than 10 percent for the right knee meniscal tear is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1991 to January 1994 with additional service in the Army National Guard from January 1994 to July 2003. This matter comes on appeal before the Board of Veterans' Appeals (Board) from an April 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural background, the RO initially granted service connection for the right knee disability and assigned a noncompensable rating effective July 26, 2004. The Veteran timely submitted a notice of disagreement to the initial rating for the right knee disability and this appeal ensued. During the pendency of the appeal, the RO granted an initial 10 percent rating for the right knee disability in the September 2005 statement of the case (SOC). In a June 2013 Board decision, the Board denied a rating higher than 10 percent for the right knee chondromalacia with internal derangement. The Veteran appealed the Board's June 2013 decision to the Court of Appeals for Veterans Claims (Court), and a Joint Motion for Partial Remand (JMR) was granted in July 2014. The JMR vacated the June 2013 Board decision because, although the Veteran reported flare-ups in the right knee, the previous 2005, 2010, and 2011 VA examinations were inadequate as they did not address functional loss during flare-ups as required by Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011) and DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Thus, the Board remanded the claim for another VA examination of the right knee. The claim has since been before the Board in July 2016, February 2017, November 2017, and May 2019. All subsequent VA examinations conducted after the July 2016, February 2017, and November 2017 Board remands were determined to be inadequate in their current forms for various reasons. While the claim was on remand after the May 2019 Board decision, the RO granted service connection for a right knee meniscal condition and assigned a 10 percent rating effective December 29, 2011 under Diagnostic Code (DC) 5259. The RO noted that a 10 percent rating was the highest rating available under DC 5259, and therefore, the assignment of a 10 percent rating under DC 5259 was a full grant of the benefit sought on appeal. Nevertheless, when evaluating the right knee, higher ratings may be available under different diagnostic codes or a higher combination of ratings may be available. In addition, the RO assigned the additional 10 percent rating for the meniscal tear for only a portion of the period on appeal, thereby making it not a full grant of the benefit sought by the Veteran. Therefore, the Board has jurisdiction over the initial rating assigned to the meniscal tear as part of the increased rating claim for the right knee disability. As such, this issue has been added, as noted above. 1. Entitlement to a rating higher than 10 percent for the right knee painful loss of motion is remanded; and 2. Entitlement to a rating higher than 10 percent for the right knee meniscal tear is remanded. Unfortunately, another remand is necessary before the claim can be adjudicated. The May 2019 Board decision remanded the increased rating claim for the right knee disability and directed that the Veteran be afforded a VA examination by an orthopedic specialist. On remand, the RO obtained a November 2019 VA knee examination from a nurse practitioner, a March 2020 VA knee examination from an orthopedic specialist, and a October 2020 VA knee examination from a second family nurse practitioner, as well as an October 2020 retrospective opinion from the October 2020 VA examiner (a family nurse practitioner) and a February 2021 family medical physician. The November 2019 VA examiner indicated the Veteran had full extension with limited flexion to 95 degrees on initial range of motion testing. There was no additional loss of range of motion on observed repetitive use testing after three repetitions, after repeated use over time, or during a flare-up. The November 2019 VA examiner also found that the examination was neither medically consistent nor inconsistent with the Veteran's description of the right knee functional loss with repeated use over time or during a flare-up. While the examiner elicited information from the Veteran as to the frequency, severity, duration, precipitating and alleviating factors, and a brief description of functional loss during a flare-up, the examiner failed to elicit this information from the Veteran for repeated use over time. The examiner found the physical examination was neither consistent nor inconsistent with the Veteran's description of functional loss during a flare-up or after repeated use over time, but found that neither pain, fatigability, weakness, or incoordination significantly limited the right knee functional loss during these conditions. No estimate of additional loss of range of motion in degrees was provided during flare-ups or after repeated use over time. The examiner also indicated there was no joint instability after objective testing was performed, and there was no history of recurrent subluxation or lateral instability in the right knee. Additionally, the examiner incorrectly indicated the Veteran had never had a meniscal condition, despite also acknowledging the Veteran's prior meniscectomies in 2006, 2007, and 2008 and noting surgical residuals of pain on ambulating, decreased range of motion, swelling, crepitus, and numbness of the right knee scar. The Veteran was then afforded another March 2020 VA examination with an orthopedic physician as directed by the Board in the May 2019 decision. Initial range of motion testing showed limited flexion to 90 degrees and limited extension to 20 degrees. The abnormal range of motion contributed to the functional loss as the Veteran was unable to squat or stand for long periods without quadricep fatigue. Pain was noted on examination and caused functional loss. The VA examiner indicated that after three repetitions on observed repeated use testing, the right knee showed additional loss of function due to pain and lack of endurance but without additional loss of range of motion. Similar findings were given for repeated use over time and flare-ups. The examiner explained that, although the Veteran's range of motion was unchanged, functional ability was also limited due to painful crepitus with repeated use over time. The March 2020 VA examiner also conducted stability testing and found that there was a history of slight lateral instability in the right knee. The examiner noted the Veteran's history of right knee meniscal tears with frequent episodes of joint locking and joint pain. The examiner did not elicit from the Veteran information about the frequency, severity, duration, precipitating and alleviating factors, or a description of functional loss during flare-ups or after repeated use over time. Further, the examiner did not indicate whether the physical examination was consistent, inconsistent, or neither consistent nor inconsistent with the Veteran's description of functional loss after repeated use over time. Subsequently, the Veteran was again afforded an October 2020 VA knee examination by a nurse practitioner. The VA examiner reported that the Veteran had normal extension to 0 degrees and reduced flexion to 100 degrees. There was no additional loss of range of motion after three repetitions on observed repetitive use testing. Pain caused additional functional loss, but there was no additional loss of range of motion with repeated use over time. The examiner elicited from the Veteran a description as to the frequency, duration, severity, precipitating and alleviating factors, and a description of functional impact with repeated use over time and indicated that although there was no additional loss of range of motion, heavy and repeated activity worsened her pain which prevented her from continuing those activities. The examiner wrote "mild severity" and that inability to continue activity happened as often as heavy activity was prolonged. Specifically, for flare-ups, the VA examiner found that pain caused significant functional loss and estimated that flexion was limited to 90 degrees and extension was limited to 10 degrees. The examination was found to be medically consistent with the Veteran's description of functional loss during a flare-up and with repeated use over time. The examiner did not provide a response as to whether there was a history of recurrent subluxation or lateral instability, and joint stability testing was normal. This examiner also incorrectly indicated that the Veteran did not have and had never had a meniscal condition and noted only one 2015 arthroscopic debridement surgery, although none of the other examiners noted a 2015 right knee surgery. The October 2020 VA examiner also was asked to review the March 2005, August 2010, January 2012, November 2015, August 2016, and June 2017 VA examinations and provide a retrospective medical opinion as to the Veteran's range of motion during a flare-up. The VA examiner indicated that, although the previous examinations were reviewed, he did not conduct any of the past examinations, and even if he had, he would not be able to remember details from examinations so long ago. The VA examiner concluded he was unable to comment on previous examination findings. Finally, an additional VA medical opinion was requested in February 2021. The clinician, a family medical doctor, reviewed the claims file and concluded that it was at least as likely as not that the right knee disabilities resulted in additional loss of range of motion during flare-ups based on the Veteran's medical history and the previous examinations which noted additional functional loss during flare-ups and specific functional impact as reported by the Veteran. Nevertheless, the clinician did not provide specific estimates of the loss of range of motion during a flare-up in degrees. Unfortunately, another remand is warranted to obtain an additional addendum opinion from the February 2021 VA clinician, requesting an estimate of the additional loss of range of motion in the right knee during flare-ups and with repeated use over time in degrees for flexion and extension. The matters are REMANDED for the following action: 1. Obtain any outstanding pertinent VA treatment records and associate them with the claims file. 2. Obtain an addendum opinion as to the severity of the right knee disabilities from the same clinician who provided the February 2021 VA medical opinion, if possible. If the February 2021 clinician is unavailable, obtain an addendum opinion from an orthopedic surgeon. Whether an additional physical examination is warranted is left to the discretion of the examiner. After a thorough review of the claims file, the clinician should address the following: a) Clarify whether the Veteran underwent an arthroscopic debridement of the right knee in 2015. If so, provide details of this surgery, to include but not limited to the date of the surgery, pertinent findings, and/or meniscal repairs. b) Review the December 2019, March 2020, and October 2020 VA examination reports and the Veteran's lay statements. Then, estimate the most severe loss of right knee range of motion for flexion and extension in degrees during a flare-up. See February 2021 VA medical opinion. c) Review the December 2019, March 2020, and October 2020 VA examinations. Then, estimate the most severe loss of right knee range of motion for flexion and extension in degrees after repeated use over time. *A complete rationale must be given for each conclusion provided. 3. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR THE APPROPRIATE CORRECTIVE ACTION. 4. Readjudicate the claim on appeal. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Harper, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.