Citation Nr: 21030550 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 20-00 348 DATE: May 19, 2021 REMANDED Entitlement to a rating in excess of 10 percent for a right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from July 2005 to June 2007. This matter comes before the Board of Veterans' Appeals (Board) from an August 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. The Board remanded this matter for further development in February 2021 to obtain a new examination of the Veteran's right knee disability. A new examination was obtained in April 2021. Unfortunately, although the Board regrets prolonging this case further, remand is warranted again as the April 2021 examination is inadequate. The April 2021 examiner observed that the Veteran reported functional loss and flare-ups of his right knee disability; however, in the range-of-motion section of the examination report (Section III, 3(D)), the examiner provided a negative response to whether the evidence suggests functional loss due to flare-ups and did not reconcile this discrepancy. The examiner also indicated that the evidence failed to show additional functional loss due to repeated use over time (Section III, 3(C)), despite acknowledging that the Veteran reported increased pain after prolonged periods of activity or inactivity. The examiner also indicated in Section II, 2(D), that the Veteran did not report a history of instability, despite the Veteran's testimony of such at the December 2020 hearing, and the examiner failed to reconcile the answer in Section 2(D) with the Veteran's credible reports to the contrary. Furthermore, the examiner indicated that the Veteran's right knee manifested pain on flexion and extension, however, he also indicated that the pain did not cause additional functional impairment, and the examiner did not reconcile this finding with the Veteran's credible reports to the contrary. However, this finding is also seemingly contradicted by the examiner's indication on page 4 of the report that pain on weight-bearing, active motion, and passive motion caused loss of flexion, while also seemingly indicating that the right knee's range of motion did not change due to pain. There is also some information in the Remarks section (Section XV) of the report regarding instability and indicating that there are no findings of joint instability or lateral instability of the right knee; however, it is unclear whether stability tests were actually conducted and if so, the specific measurements of those tests. And again, the examiner did not reconcile the finding of no instability with the Veteran's credible reports to the contrary. Lastly, the examiner failed to note that the Veteran used knee braces (Section XI, 11(A)), despite a March 2021 VA treatment note indicating that two large knee braces were "dispended per provider order." For these reasons, the April 2021 knee examination is inadequate and obtaining a new adequate examination is required to satisfy the VA's statutory obligation to assist the Veteran. Updated VA and private treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding relevant private treatment records. 3. Then schedule the Veteran for a knee examination by an appropriate clinician other than the April 2021, October 2019, November 2018, and June 2016 examiners, and preferably an orthopedic specialist, to determine the current severity of his service-connected right knee disability. The entire claims file should be made available to and must be reviewed by the examiner, including this Remand decision. After reviewing the claims file, the examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner should conduct all indicated tests and studies, to include range of motion studies. For the range of motion study, each of the joints involved should be tested for pain (1) on active motion, (2) on passive motion, (3) in weight-bearing, (4) in nonweight-bearing and (5) if possible, with range of motion 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. Please also provide an opinion describing functional impairment of the Veteran's right knee, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined and the reason why those facts cannot be determined if unable to opine without resort to mere speculation (e.g., lack of insufficient information or evidence, the limits of medical knowledge, etc.). The examiner's attention is invited to the following evidence, which must be considered and discussed in the examiner's report: (a.) The entirety of the December 2020 Board hearing transcript, and specifically the Veteran's reports of swelling (Tr. 4, 5, 7), pain (Tr. 4, 5, 13, 14), flare-ups (Tr. 10), wearing a brace (Tr. 6), functional loss (Tr. 11), and loss of balance (Tr. 16). (b.) The March 2021 VA treatment note indicating two large knee braces were "dispensed per provider order." The examiner must reconcile any discrepancies that exist between the Veteran's credible reports, to include credible reports of instability, pain, flare-ups, swelling, imbalance, and functional loss, with objective findings and measurements. Specifically, the Veteran has credibly reported instability and additional loss of function and range of motion due to pain, and if objective testing differs from these credible reports, the examiner must explain how that is so. The examiner is asked to ensure the examination report reflects the recent regulatory amendments affecting the rating of knee disabilities, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. deBruyn, Associate 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.