Citation Nr: 21042116 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 11-03 240 DATE: July 12, 2021 ORDER An initial 10 percent rating for left knee painful motion prior to February 21, 2014, is granted. REMANDED Entitlement to a disability rating in excess of 10 percent from February 21, 2014, to March 16, 2017, and from June 1, 2017, for right knee flexion is remanded. Entitlement to an initial disability rating in excess of 10 percent for limitation of extension of the right knee prior to July 26, 2018, is remanded. Entitlement to a disability rating in excess of 20 percent for limitation of extension of the right knee from July 26, 2018, is remanded. Entitlement to an initial disability rating in excess of 10 percent for right knee instability is remanded. Entitlement to an initial disability rating in excess of 10 percent for left knee instability is remanded. FINDINGS OF FACT Throughout the appeal, the Veteran's left knee manifested with painful motion. CONCLUSIONS OF LAW The criteria for an initial rating of 10 percent for left knee painful motion prior to February 21, 2014, have been met. 38U.S.C. §§1155, 5107; 38C.F.R. §§3.102, 4.71a, DC 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 2000 to April 2009. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, granted service connection for right knee chondromalacia and assigned a noncompensable disability rating, effective from April 22, 2009; and granted service connection for left knee chondromalacia and assigned a noncompensable disability rating, effective from April 22, 2009. In August 2015, the Veteran testified at a Board hearing before a Veterans Law Judge who is no longer available to issue a decision in the case. The Veteran was notified of this situation in October 2017, and offered the opportunity to request a new hearing. The Veteran responded to the letter in October 2017 by indicating that she did not wish to appear at another Board hearing. During the pendency of the appeal, the RO issued rating decisions in March 2014, April 2016, August 2019, and May 2020, granting increased or separate staged disability ratings. Those rating decisions did not resolve the appeal for these issues. A September 2017 rating decision granted a temporary total evaluation based on surgical treatment necessitating convalescence, effective from March 16, 2017 to June 1, 2017. The Veteran did not appeal that decision, and as it represented a grant of the maximum benefit sought on appeal, that issue is not before the Board. In November 2015, January 2017, and February 2018 the Board remanded the case to the RO for further development and adjudicative action. In December 2019, the Board denied the appeal. The Veteran appealed to the Court of Appeals for Veterans Claims (Court). In a November 2020 order, the Court vacated the Board's December 2019 decision with respect to the denial of (1) a rating in excess of 10 percent for right instability, (2) a rating in excess of 10 percent from February 21, 2014 to March 16, 2017, and from June 1, 2017, for right knee flexion, (3) a disability rating in excess of 10 percent for limitation of extension of the right knee prior to July 26, 2018, (4) a disability rating in excess of 20 percent for limitation of extension of the right knee after July 26, 2018, and (5) a disability rating in excess of 10 percent for left knee instability and remanded the matter pursuant to a November 2020 Joint Motion for Partial Remand (JMPR). The Parties also agreed that, on remand, the Board should clarify whether it adjudicated a claim for entitlement to service connection for left knee painful motion. The parties clarified that the remaining issues decided by the Board were not appealed. Increased Rating An initial compensable disability rating for left knee painful motion. In the December 2019 decision, the Board found that the Veteran's left knee condition more nearly approximated an initial 10 percent rating effective on April 22, 2009. The Board explained that her medical records showed continuous knee problems, painful motion and medical treatment, including for painful motion, weakness, stiffness and giving away. See VA medical examination (March 2009). The Board's finding of fact was that, throughout the appeal period, the Veteran's left knee showed painful motion. The Board's conclusion of law was that the criteria for an initial rating of 10 percent for left knee painful motion had been met. The Board did not include an order granting the initial 10 percent rating, and the RO has not issued a rating decision implementing such an award. In the JMPR, the parties requested that, on remand, the Board clarify whether it adjudicated a claim for left knee painful motion as the Board had "neither granted nor denied entitlement relating to a claim for left knee painful motion." At present, the Board wishes to reiterate and make clear its decision from December 2019. The Veteran has had painful motion throughout the appeal period. This painful motion warrants an initial 10 percent rating. See 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59, 4.71a. No evidence has been added to the file since the Board's December 2019 decision, which might materially change the Board's decision. As such, the Board's decision remains the law of the case, and the claim is granted. The parties to the JMPR expressly stated that the Veteran was not appealing the issue of entitlement to an initial disability rating in excess of 10 percent for right knee painful motion. Hence, the instant decision represents a complete grant of the benefit sought on appeal. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 10 percent from February 21, 2014, to March 16, 2017, and from June 1, 2017, for right knee flexion is remanded. 2. Entitlement to an initial disability rating in excess of 10 percent for limitation of extension of the right knee prior to July 26, 2018, is remanded. 3. Entitlement to a disability rating in excess of 20 percent for limitation of extension of the right knee after July 26, 2018, is remanded. 4. Entitlement to an initial disability rating in excess of 10 percent for right knee instability is remanded. 5. Entitlement to an initial disability rating in excess of 10 percent for left knee instability is remanded. This issue is remanded for a new VA examination. The parties to the JMPR agreed that remand was needed to ensure the Veteran is provided with an adequate VA examination or opinion to address the severity of her service-connected right knee flexion and limitation of extension conditions. The parties noted that all prior examinations "were deficient in some respect." The parties referenced, for example, VA examinations from January 2017 and July 2018, which did not comply with Sharp, Mitchell, and Deluca. The Board observes that the Veteran has since undergone a new VA knee examination in January 2021. That VA examination contains findings compliant with Sharp, Mitchell, and Deluca. However, the Board finds that it is not fully compliant with the concerns raised in the JMPR as the appeal period for these disabilities predate January 2021 by many years. To this end, the compliant findings are absent for the earlier period. The Board finds that a retrospective opinion is needed to attempt to obtain the missing information. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to provide retrospective findings regarding the knees in regard to pain on range of motion testing and an estimation of functional loss, per Correia and Sharp, for the appeal period from April 2009 to January 2021. (a.) The examiner should estimate in degrees the amount of range of motion lost due to pain in both weight-bearing and nonweight-bearing positions, and on both active and passive motion experienced by the Veteran. (b.) The examiner should also estimate in degrees the amount of range of motion lost due to flare-ups experienced by the Veteran. The examiner is asked to identify, to the extent possible, the date on which any change in degree of impairment first occurred. If the examiner cannot provide any or all of the requested information, 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). Corey Bosely Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Modesto, Victor 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.