Citation Nr: 21041414 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-38 880 DATE: July 9, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for service-connected left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from April 2011 to August 2014. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision. In July 2020, the Board remanded this claim to obtain a new VA examination. Entitlement to an initial rating in excess of 10 percent for service-connected left knee disability is remanded. In reviewing the adequacy of the existing VA examination reports, certain range of motion testing must be conducted whenever possible in cases of joint disabilities. 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158 (2016). "[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." Correia, 28 Vet. App. 158. An additional relevant opinion pertaining to flare-ups was also issued by the Court in Sharp v. Shulkin, 29 Vet. App. 26 (2017). Also, the VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). In July 2020, the Board ordered a new VA examination to determine the current severity of the Veteran's left knee condition. However, the new VA examination conducted in December 2020 does not comply with DeLuca. The active and passive motion, and weight-bearing and non-weight-bearing were all included in the examination. However, the examiner noted the Veteran had pain on forward flexion and extension during the initial range of motion testing, pain with repetitive use over time, and pain with flare ups, but did not specifically indicate the degree at which pain occurred. As such, a remand is necessary to afford the Veteran another VA examination for his service-connected left knee condition. The matters are REMANDED for the following action: 1. Obtain all VA treatment records not currently associated with the claims file. 2. Schedule a new examination to evaluate the severity of the Veteran's service-connected left knee condition. The claims folder must be made available to and reviewed by the examiner. The examiner should note in the examination report that the claims folder has been reviewed. All indicated studies, including x-rays should be performed. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, AND at what degree of motion he demonstrates such objective evidence (e.g., 0 to 130 degrees with pain at 115 degrees). The examiner should record the results of range of motion testing for pain on active motion, passive motion, weight-bearing, and non-weight-bearing in light of Correia. 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 also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups assessed in terms of the degree of additional range of motion loss. In regard to flare-ups (pursuant to Sharp v. Shulkin), if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. [The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran.] (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Papacalos, 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.