Citation Nr: 22013376 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 15-27 272A DATE: March 9, 2022 REMANDED Entitlement to a rating higher than 10 percent under DC 5260 for the Veteran's service-connected right knee disability is remanded. Entitlement to a rating higher than 10 percent under DC 5260 for the Veteran's service-connected left knee disability is remanded. Entitlement to a separate rating under DC 5261 prior to May 26, 2020, for the Veteran's service-connected right knee disability is remanded. Entitlement to a separate rating under DC 5261 prior to May 26, 2020, for the Veteran's service-connected left knee disability is remanded. Entitlement to a rating higher than 20 percent under DC 5261 since May 26, 2020, for the Veteran's service-connected right knee disability is remanded. Entitlement to a rating higher than 20 percent under DC 5261 since May 26, 2020, for the Veteran's service-connected left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1976 to August 1996.This matter comes before the Board of Veterans' Appeals (Board) from a May 2014 rating decision. The Veteran testified at a Board hearing in January 2019. In January 2021, the Board adjudicated the Veteran's claim of higher ratings for his knees. Specifically, the Board denied a rating higher than 10 percent under DC 5260 and, for the period since May 26, 2020, granted a separate rating of 20 percent under DC 5261, for each knee. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In November 2021, the Court granted a joint motion for partial remand (JMPR), thereby vacating those portions of the January 2021 Board decision denying a rating higher than 10 percent under DC 5260, a separate rating under DC 5261 prior to May 26, 2020, a rating higher than 20 percent under DC 5261 since May 26, 2020, for each knee. Per the November 2021 JMPR, both VA and the Veteran agree that an August 2019 and June 2020 VA examination are inadequate because the examiner failed to provide an adequate opinion on an initial finding about any degree of loss due to pain or explain whether pain was pervasive throughout all of testingmore disablingor simply occurred at the endless disabling. See Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). The parties also agree that the June 2020 VA examination was deficient under Correia v. McDonald, 28 Vet. App. 158 (2016), as the examiner failed to indicate where pain on both active and passive movements as well as weight and non-weight bearing activities began. For these reasons, the parties agree that remand is warranted to obtain a VA examination that complies with the Court's precedent under both Mitchell and Correia. Finally, the record shows that the Veteran receives VA treatment. Any outstanding VA treatment records should be associated with the claims file. Accordingly, this matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral knee disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must assess the degree of functional loss due to pain or explain whether pain was pervasive throughout all of testingmore disablingor simply occurred at the endless disabling. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If there is pain with active and passive motion, or with weight and non-weight bearing activities, the examiner must indicate where pain begins. If it is not possible to provide a specific measurement 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). 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. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement 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). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. López, 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.