Citation Nr: 21029719 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 17-02 988 DATE: May 14, 2021 REMANDED The claim of entitlement to a rating in excess of 10 percent for service-connected left knee strain/meniscal tear with osteoarthritis, is remanded. REASONS FOR REMAND The Veteran had active service from November 1994 to December 1996 and from May 2003 to December 2003. In November 2019, the Veteran testified at a Board of Veterans' Appeals (Board) video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the file. In December 2019 and February 2021, the issue on appeal was remanded for additional evidentiary development and has now been returned for further appellate consideration. Entitlement to a rating in excess of 10 percent for service-connected left knee strain/meniscal tear with osteoarthritis. The Board remanded the claim in December 2019 and February 2021 for new examinations to comply with Correia v. Mcdonald, 28 Vet. App. 158 (2016). As a result, the Veteran was examined by VA on August 2020 and March 2021. Following the two prior remands in this case, the Board is cognizant that the Veteran's claim has been pending since 2016. Unfortunately, in the interest of concluding this case with a fair and just decision for the Veteran, the claim must be remanded once again in order to attempt to obtain the necessary medical information. Specifically, and for the same reasons as before, it is noted that the most recently obtained examination of March 2021 is also not in full compliance with Correia, supra. The Board has still not been provided with the information necessary to enable the proper assessment of the left knee. As already stated in the previous remand decision: Examinations for joints disabilities generally must include range of motion (ROM) measurements. Correia, supra, at 158, 169. In conducting these measurements, the examiner should also note whether pain on motion is present, and, if so, where in the ROM the pain sets in and whether that pain causes functional loss. Id. The Board has reviewed the March 2021 examination report. While ROM testing was provided and pain was noted, the exact point where pain sets in was not noted. Therefore, the Board is unable to properly assess the functional impairment caused by the disabilities and a new examination is needed. Much of the legal discussion which follows was provided in the Board's detailed February 2021 decision as an attempt was made to explain what the law requires and what exactly was needed to address the Veteran's claim. It will be repeated in pertinent part in this decision to aid the next VA examiner in addressing the remand directives. The Board notes that the March 2021 VA examination report reflects left knee strain/meniscal tear with osteoarthritis, status post-surgical arthroscopy. The examiner indicated that the Veteran did not have left knee flare-ups. He did experience functional impairment of the left knee. He had to be very careful in the winter or when it was raining. He was always afraid of slipping and injuring his knees. He was unable to stand for any length of time. Initial ROM of the left knee was from 0 degrees of extension to 120 degrees of forward flexion. There was evidence of pain with weight bearing. Repetitive use testing did not result in additional functional loss. Pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time. This functional loss was due to pain and fatigue. ROM was described as 0 degrees of extension with 110 degrees of forward flexion. Thus, the Board finds that there is functional impairment associated with the left knee pain. In light of the above-discussed facts, the Board is left with a need to assess the degree of the Veteran's functional impairment during the described exacerbations of his left knee disability, but the Board has not been provided with the information necessary to enable such an assessment. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board finds that a remand is necessary because the March 2021 VA examination report does not provide the necessary information. Furthermore, although the March 2021 VA examiner included remarks attempting to provide the required information contemplated by the Court's holding in Correia, supra, the VA examiner's remarks are inadequate and unclear for the purposes of final appellate review. The Board notes that the VA examiner's remarks here indicate that there was objective evidence of pain on active ROM. The Board also notes that the VA examination report indicates that non-weight weight and passive ROM resulted in "no objective evidence of pain" during this testing. In Correia, supra, the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain ROM testing be conducted whenever possible in cases of joint disabilities. The final sentence provides that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with the range of the opposite undamaged joint." The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the ROM testing described in the final sentence of § 4.59. Correia, 28 Vet. App. at 169-170. One potential interpretation of the final sentence of 38 C.F.R. § 4.59 ("The joints involved should be tested for pain on both active and passive motion, in weight bearing and nonweight-bearing") is that the information provided by the August March 2021 VA examiner in this case is sufficient. This is true, the argument continues, because the text of the regulation requires only that the examiner test for pain and the examiner in this case has done that by indicating whether or not the Veteran experienced pain during ROM testing using the required methods. But there are several parts of the opinion in Correia which suggest that it is not enough merely to indicate whether or not pain was present during a test. In the part of the decision which considered whether § 4.59 was ambiguous, the Court explained the role of the regulation in the context of other regulations which apply generally to disabilities of the musculoskeletal system. "In that context, then, we read the final sentence of § 4.59 as explaining the kinds of test results that 'should' be obtained to permit an adjudicator to assess the effect of painful motion - range of motion tests for both passive and active motion, and in both weight-bearing and non-weight-bearing circumstances." Correia, 28 Vet. App. at 165 (emphasis in original). It is difficult to see how test results which merely indicate the presence or absence of pain would permit an adjudicator to assess the effect of pain on ROM. To do so effectively, it would be useful for the adjudicator to have the full results of each ROM, i.e., the ROM, in degrees, of the relevant joint using each of the testing methods identified in the regulation. The Correia opinion continues with analysis of the proper interpretation of § 4.59. This part of the Court's analysis indicates that the regulation should be read together with 38 C.F.R. §§ 4.40 and 4.45. The Court explained that: [§ 4.40] states that it "is essential" that an examination on which a disability rating is based "adequately portray the anatomical damage and the functional loss" that occurs as a result of those elements. Section 4.45 explains that "the factors of [joint] disability reside in reductions of their normal excursion of movements in different planes,".... Neither of those regulations, however, explains how that information should be obtained, except that § 4.40 refers to "an examination," but the Secretary has answered this question in § 4.59. Correia, 28 Vet. App. at 169 (internal short form citations, explanatory parenthetical, and emphasis in original omitted). If § 4.59 was intended to accomplish the purposes of § 4.40 and § 4.45, one of which is to assess "reductions of [the] normal excursion of movements [of the joint] in different planes," the most reasonable reading of § 4.59 requires the examiner to provide detailed range of motion test results, not merely an indication of whether or not pain was present. The final sentence the Court's regulatory interpretation analysis supports this conclusion: "Consequently, we are left with the inescapable conclusion that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the ROM testing described in the final sentence of § 4.59." Id. at 169-70. In the matter before the Board, it is the Veteran's primary assertion that his left knee pain warrants a rating in excess of 10 percent. The March 2021 VA examination reports provides an indication that active ROM was affected by objectively evidenced pain but passive was not. The point at which the Veteran's pain began was not provided. In the absence of any indication of the portion of the extent of the ROM affected by pain, or the degree of limitation due to pain, from testing that was directly conducted/observed by the VA examiner, prevents the Board from making a meaningfully informed determination as to the severity of the functional loss associated with the Veteran's left knee. Primarily, the Board finds it necessary to obtain clinical findings showing at what point (in degrees) the Veteran's complaints of pain begin. The Board finds that clearer and more adequate descriptions of functional loss due to pain on passive motion testing would be important to informed appellate review. The Board finds that a new examination is warranted to support adequately informed appellate review and to comply with the decision in Correia v. McDonald, 28 Vet. App. 158 (2016). The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his left knee disorder. The claim file should be made available to and reviewed by the examiner and the examination report should state a review of the file was completed. All findings should be reported in detail. The examiner should identify all knee pathology found to be present. The examiner should conduct ROM studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with ROM measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. It is imperative that the examiner comment on where in the ROM the pain sets in and whether that pain causes functional loss. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional ROM loss during flareups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). (Continued on next page) 6. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Hal Smith, 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.