Citation Nr: 21032480 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 14-22 799 DATE: May 27, 2021 REMANDED Entitlement to a rating in excess of 10 percent for a left knee anterior cruciate ligament (ACL) tear and posterior cruciate ligament (PCL) partial tear, is remanded. Entitlement to an initial rating in excess 10 percent for a right knee strain, based on painful limitation of flexion, is remanded. Entitlement to an initial compensable rating for a right knee strain, based on painful limitation of extension, is remanded. Entitlement to an initial rating in excess of 10 percent for a left hip strain is remanded. REASONS FOR REMAND The Veteran served on active duty from December 2007 to May 2008. These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2017, November 2017, and February 2018 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2020, the Board denied the claims on appeal. Thereafter, the Veteran appealed such decision to the United States Court of Appeals for Veterans Claims (Court). In February 2021, the Court granted the Veteran's and the Secretary of VA's (the parties) Joint Motion for Partial Remand (JMPR), which vacated and remanded the Board's April 2020 decision for action consistent with the JMPR. 1. Entitlement to a rating in excess of 10 percent for a left knee ACL tear and PCL partial tear. 2. Entitlement to an initial rating in excess 10 percent for a right knee strain based on painful limitation of flexion. 3. Entitlement to an initial compensable rating for a right knee strain based on painful limitation of extension. 4. Entitlement to an initial rating in excess of 10 percent for a left hip. The Veteran contends that he is entitled to higher ratings for his bilateral knee disabilities and left hip disability as the currently assigned rating does not reflect his symptomatology. Pursuant to the JMPR instructions, a remand is necessary in order to obtain a VA examination and retrospective opinion to ensure all the Veteran's symptoms are adequately considered. In this regard, the February 2021 JMPR, found that a July 2019 VA examinations for the knees and left hip were not adequate considering the requirements of Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Specifically, the JMPR found that although the examinations complied with the required testing for pain on both active and passive motion, and in weight-bearing and nonweight-bearing, they failed to provide the actual ranges of motion for both knees on passive and active range of motion. Consequently, a remand is necessary in order to obtain VA examinations which adequately consider the requirements as set forth in Correia. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Further, the record includes examinations from September 2017 and November 2017 for the knees, and November 2017 for the left hip, which do not include range of motion findings for passive motion. Therefore, if possible, the examiner should provide a retrospective opinion to adequately consider to the Correia requirements for these previous examinations. See Chotta v. Peake, 22 Vet. App. 80, 85 (2008) (holding that the duty to assist may include obtaining a retrospective medical opinion to fill in gaps in the medical evidence of record). The examiner should apply the requirements of 38 C.F.R. § 4.59 determined by Correia, or explain why such testing is unnecessary or impossible to obtain. The matters are REMANDED for the following action: 1. Schedule the Veteran for examinations of the current severity of his left knee ACL tear and PCL partial tear, right knee strain (including limitation of flexion and extension, and left hip strain. (A) The examiner must test the Veteran's right knee, left knee, and left hip, active motion, passive motion, and pain with weight-bearing and without weight-bearing, or explain why such testing is unnecessary or why he or she is unable to do so. (B) The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups and after repeated use over time, and the degree of functional loss during flare-ups and after repeated use over time. To the extent possible, the examiner should identify any symptoms and functional impairments due to the disability alone and discuss the effect of the Veteran's disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement or an opinion regarding flare-ups and after repeated use over time, symptoms, or functional impairment 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). (C) The examiner should also review the previous VA examinations of record, including the September 2017 and November 2017 examinations for the knees, and the November 2017 examination for the left hip, and offer a retrospective opinion as to the findings for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to do so, he or she should explain why. (D) The examiner should also review the previous VA examinations of record, including the September 2017 and November 2017 examinations for the knees, and the November 2017 examination for the left hip, as well as the Veteran's reports of flare-ups, and offer a retrospective opinion based on estimates derived from the information provided as to the additional functional impairment that may be present during a flare-up. If the examiner cannot provide an opinion as to additional impairment during a flare-up without resorting to mere 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). (Continued on the next page) A rationale for all opinions offered should be provided. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jonathan M. Estes 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.