Citation Nr: 22012508 Decision Date: 03/04/22 Archive Date: 03/04/22 DOCKET NO. 15-13 523 DATE: March 4, 2022 REMANDED The issue of entitlement to an initial compensable evaluation for the period prior to October 11, 2021, and in excess of 30 percent disabling for the period thereafter, for service-connected patellofemoral syndrome, limitation of extension, right knee, to include on an extraschedular basis, is remanded. The issue of entitlement to an initial evaluation in excess of 10 percent disabling for the period prior to October 11, 2021, and a compensable evaluation for the period thereafter, for service-connected patellofemoral syndrome, right knee (ACE), to include on an extraschedular basis, is remanded. The issue of entitlement to an initial evaluation in excess of 10 percent disabling for service-connected right knee instability, subluxation, to include on an extraschedular basis, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 2010 to January 2013. In August 2018, the Veteran testified under oath at a travel board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In June 2021, the Board remanded this appeal for additional development. For the reasons outlined below, the Board finds that remand is again needed. In an October 2021 rating decision, the evaluation for service-connected patellofemoral syndrome, limitation of extension, right knee, was increased to 30 percent disabling, effective October 11, 2021. The increase is reflected in the issues on appeal. In the same rating decision, the evaluation for service-connected patellofemoral syndrome, right knee (ACE), was decreased to a noncompensable evaluation, effective October 11, 2021. The decrease is reflected in the issues on appeal. The Board notes that with the increase and decrease the Veteran's combined rating is now higher, effective October 11, 2021. Accordingly, the procedural safeguards under 38 C.F.R. § 3.105(e) do not apply to the reduction. Entitlement to increased evaluations for right knee disability. The Board finds that a remand is needed in this matter. First, the Board finds that a new VA examination is needed. At the outset, the Board notes that the Veteran's representative has argued that "[a]t minimum, the appeal should be remanded to afford the veteran a new medical examination with a board-certified orthopedic specialist." See Brief, February 2022. Without reaching the merits of the representative's argument, the Board agrees that a new VA examination is needed. In the June 2021 remand, the Board directed: "For all ranges and planes of motion where pain is noted, the exact point at which pain starts must be clearly noted." (Emphasis in original). However, in the October 2021 VA examination report, while pain was noted in the right knee on flexion and extension in initial range of motion measurements, the exact point, in degrees, at which the pain occurs was not noted. In addition, the VA examination report indicates pain with weight-bearing. However, these results are not expressed in terms of degrees of range of motion. Accordingly, remand is again needed in this matter. See Correia v. McDonald, 28 Vet. App. 158 (2016). In addition, the Board acknowledges the Veteran's representative's request for the prior examiner's "curriculum vitae and other information about qualifications of the examiner that demonstrates that she was competent to provide an opinion on the specific issue of right knee patellofemoral syndrome." See Brief, February 2022. As addressed above, the Board finds the October 2021 VA examination report to be inadequate and directs that a new VA examination be conducted. However, to the extent that the request for the prior examiner's curriculum vitae and other information remains at issue, the Board asks that it be provided as requested. See Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019) (finding that, pursuant to VA's duty to assist, "[o]nce the request is made for information as to the competency of the examiner, the veteran has the right, absent unusual circumstances, to the curriculum vitae and other information about qualifications of a medical examiner."). As a clarification, the Board notes that in the February 2022 brief, the Veteran's representative identified a November 2021 VA examination. The Board has reviewed the file and notes an October 2021 VA examination. However, the name of the examiner provided in the brief matches that of the examiner identified in the October 2021 VA examination report. Accordingly, the Board assumes that the request for the curriculum vitae and other information pertains to the October 2021 VA examiner. The matter is REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the issues on appeal. All efforts should be documented in the claim file. If any records could not be obtained, this should be noted in the claim file. 2. Obtain the qualifications, such as a curriculum vitae or similar demonstrable documentation (redacted if deemed warranted), from the examiner who performed the October 2021 VA examination. This information is also to be associated with the claim file. See Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019). If the requested qualifications are not obtainable, the reasons for such should be noted in the record and the Veteran should be so advised. 3. Upon completion of the above, schedule the Veteran for a VA examination with a board-certified orthopedic specialist or similarly qualified examiner, to evaluate the current level of severity of his right knee disability. The claim folder and all pertinent treatment records should be made available to the examiner for review, and review of such records should be noted in any subsequent report. 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 is asked specifically to provide range of motion (ROM) testing for both knees for active motion, passive motion, weight-bearing, and nonweight-bearing. Full ROM testing also must be conducted on the opposite joint unless the opposite joint is damaged, which includes any disorder that would make the joint in question abnormal. If the opposite joint is determined to be damaged, and no ROM testing is conducted, this must be explained in the report. In addition, for both knees the examiner must discuss pain for ROM movements on active, passive, and repetitive use testing. The examiner is asked to address the following questions: (a) Are any ROM movements painful on active, passive, and repetitive use testing? If yes, identify whether active, passive, and repetitive use. (b) If yes (there are painful movements), does the pain contribute to functional loss or additional limitation of ROM? Please further describe the functional loss or additional limitation of ROM. (c) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. In addition, for both knees the examiner must discuss pain when used in weight-bearing or in nonweight-bearing. The examiner is asked to address the following questions: (a) Is there pain when the joint is used in weight-bearing or nonweight-bearing? If yes, identify whether weight-bearing or nonweight-bearing. (b) If yes (there is pain when used in weight-bearing or nonweight-bearing), does the pain contribute to functional loss or additional limitation of ROM? Please further describe these limitations. (c) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. For all ranges and planes of motion where pain is noted, the exact point at which pain starts must be clearly noted. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups, as expressed in range of motion. 4. If upon completion of the above action the issues are denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Foster, 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.