Citation Nr: 21031889 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 15-27 677 DATE: May 24, 2021 REMANDED Entitlement to an initial rating greater than 10 percent for degenerative arthritis with narrowing of the medial compartment of the left knee, exclusive of the period from October 4, 2007 through November 30, 2007 during which a temporary total rating was assigned for convalescence following surgery, is remanded. Entitlement to a separate rating greater than 10 percent for left knee degenerative arthritis manifested by recurrent subluxation or lateral instability of the left knee effective November 29, 2002 to October 4, 2007, is remanded. Entitlement to a separate rating greater than 40 percent for left knee degenerative arthritis manifested by limitation of extension from August 29, 2007 to October 4, 2007, is remanded. (The issue of an effective date earlier than August 29, 2007 for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities on an extraschedular basis is subject of a separate decision by the Board) REASONS FOR REMAND The Veteran had active duty from October 1984 to October 1988. The Veteran appealed his case to the Board most recently in September 2018. The parties agreed to Joint Motions and Joint Motions for Partial Remands in August 2012 and June 2019. The claims on appeal were most recently denied by the Board in a February 2020 decision. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court), and, in November 2020 the Veteran, his representative and the Secretary of Veterans Appeals (Secretary) filed a Joint Motion for Partial Remand (JMPR). This motion was granted in a December 2020 Court order, and the case is again before the Board. In the JMPR, the parties agreed that the case required a remand due to inadequate knee examinations. The issue of a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities on an extraschedular basis was included in an April 2021 VA Form 10182. The Veteran's attorney requested a direct review of the issues of an effective date for TDIU and Dependents' Educational Assistance (DEA). The Board granted TDIU on a schedular basis in a February 2020 decision, and the RO assigned an effective date of August 29, 2007. The Veteran claims that an earlier effective date should be assigned for TDIU on an extraschedular basis. As the Veteran and his attorney have filed a VA Form 10182 for the issue of an earlier effective date for entitlement to TDIU, the issue of TDIU is considered withdrawn from the legacy appeal system. The Appeals Modernization Act (AMA) applies for this issue. The issue of an earlier effective date for TDIU will be adjudicated in a separate Board decision. 1. Entitlement to an initial rating greater than 10 percent for degenerative arthritis with narrowing of the medial compartment of the left knee, exclusive of the period from October 4, 2007 through November 30, 2007, during which a temporary total rating was assigned for convalescence following surgery, is remanded. 2. Entitlement to a separate rating greater than 10 percent for left knee degenerative arthritis manifested by recurrent subluxation or lateral instability of the left knee effective November 29, 2002 to October 4, 2007, is remanded. 3. Entitlement to a separate rating greater than 40 percent for left knee degenerative arthritis manifested by limitation of extension from August 29, 2007 to October 4, 2007 is remanded. In the November 2020 JMPR, the parties agreed that the October 2009, September 2011, and March 2015 examination reports were inadequate for rating purposes. None of the examination reports including full range of motion in both active and passive motion and in both weight-bearing and non-weight-bearing circumstances as required in Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). An examination is needed for a retroactive opinion regarding the Veteran's left knee from December 2002 to the Present. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected degenerative arthritis with narrowing of the medial compartment of the left knee, left knee degenerative arthritis manifested by recurrent subluxation or lateral instability of the left knee, and left knee degenerative arthritis manifested by limitation of extension. 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. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner is specifically asked to provide a retrospective opinion of the left knee in terms of active motion, passive motion, and pain with weight-bearing and without weight-bearing for the period from December 2002 to the Present. (Continued on the next page) 2. Readjudicate the Veteran's claims, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his attorney should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tahirih S. Samadani, 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.