Citation Nr: 22010510 Decision Date: 02/23/22 Archive Date: 02/23/22 DOCKET NO. 11-22 925 DATE: February 23, 2022 ISSUES 1. Entitlement to a rating in excess of 10 percent for residuals of right knee surgeries with mild ligament instability for the period prior to April 13, 2016. 2. Entitlement to an initial rating in excess of 10 percent for degenerative arthritis, right knee, for the period prior to April 13, 2016. 3. Entitlement to an initial rating in excess of 30 percent for total knee replacement, right knee (previously rated as residuals of right knee surgeries with mild ligament instability and degenerative arthritis), for the period from June 1, 2017, to March 10, 2021. 4. Entitlement to a rating in excess of 60 percent for total knee replacement, right knee, for the period from March 10, 2021. REMANDED Entitlement to a rating in excess of 10 percent for residuals of right knee surgeries with mild ligament instability for the period prior to April 13, 2016, is remanded. Entitlement to an initial rating in excess of 10 percent for degenerative arthritis, right knee, for the period prior to April 13, 2016, is remanded. Entitlement to an initial rating in excess of 30 percent for total knee replacement, right knee for the period from June 1, 2017, to March 10, 2021, is remanded. Entitlement to a rating in excess of 60 percent for total knee replacement, right knee, for the period from March 10, 2021, is remanded. REASONS FOR REMAND The Veteran had active service from December 2001 to August 2002 and from May 2004 to September 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veteran's Affairs (VA) Hartford Regional Office (RO) in Newington, Connecticut. The Veteran thereafter moved and jurisdiction over her appeal currently resides with the RO in Winston-Salem, North Carolina. The Veteran provided testimony before the undersigned Veterans Law Judge in April 2013. A transcript of the hearing is associated with the record. When this case was most recently before the Board in July 2021, it was remanded for additional evidentiary development. It has since been returned to the Board for further appellate action. The Board notes that the Veteran filed a claim for a non-specific respiratory condition due to burn pits, but this issue has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and the issue is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b) (2017). In the July 2021 remand, the Board noted that the Veteran was afforded a VA-contracted examination in March 2021; however, range of motion measurements were recorded for the left knee and not the service-connected right knee. As such, the Board remanded the case to afford the Veteran a new examination. In response to the Board's remand, the Veteran was afforded a VA-contracted examination in November 2021 in which she reported moderate flareups occurring every day for two to three hours with dull pain precipitated by standing for more than 30 minutes, and walking for more than 15 minutes, with alleviating factors being to not stand. Physical examination showed pain in weight-bearing and nonweight-bearing; however, range of motion in degrees was not provided. In Correia v. McDonald, 28 Vet. App. 158 (2016), the U.S. Court of Appeals for Veterans Claims (Court) noted the final sentence of § 4.59, which states "[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." The Court found this sentence to be ambiguous because the regulation, considered as a whole, is meant to guide adjudicators in determining the proper level of disability of joints, and if the range of motion testing listed in the last sentence is not required, it is unclear how an adjudicator could adequately rate a claimant's joint disability and account for painful motion. However, compelled by § 4.59's place in the regulatory scheme (it preceded the disability rating schedule), the Court held that the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. As also relevant, a more recent Court decision addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. As the November 2021 examination report did not provide all of the information specified by Correia, the claim must be remanded for a new VA examination to obtain the information necessary to properly adjudicate this claim. The matters are REMANDED for the following action: 1. The Veteran should be afforded a VA examination by an examiner with appropriate expertise to determine the current degree of severity of her service-connected right knee disability. The electronic claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed. All testing deemed necessary must be conducted and results reported in detail. The examiner should: Conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, express any functional loss in terms of additional degrees of limited motion of the Veteran's right knee, i.e., the extent of the Veteran's pain-free motion. Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), please record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. If a joint cannot be tested on "weight-bearing," please specifically indicate why that testing cannot be done. Pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is instructed to inquire whether there are periods of flare-ups. If the answer is "yes," the examiner should state their severity, frequency, and duration explaining if there are any additional or increased symptoms and limitations experienced during flares. The examiner must ALSO name the precipitating and alleviating factors. The examiner must ALSO estimate, "per [the] veteran," to what extent, if any, they affect functional impairment. A full and complete rationale for any opinions expressed is required. 2. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's issues on appeal. If action remains adverse to the Veteran, provide the Veteran and her representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board, if otherwise in order. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M.K., 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.