Citation Nr: 22014358 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 16-28 429 DATE: March 12, 2022 REMANDED Entitlement to a rating in excess of 10 percent for service-connected left knee patellofemoral pain syndrome (left knee disability) is remanded. Entitlement to a rating in excess of 10 percent for service-connected right knee patellofemoral pain syndrome (right knee disability) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to August 28, 2014 is remanded. REASONS FOR REMAND The Veteran had active service from July 1987 to November 2010. This matter comes before the Board of Veterans Appeals (Board) on appeal from a rating decision issued in November 2014 by a Department of Veterans Affairs (VA) Regional Office (RO or AOJ). As pertinent to this appeal, in March 2014, the Veteran sought an increased rating for the service-connected left and right knee disabilities. A November 2014 rating decision readjudicated the claim and decreased the disability rating assigned for the Veteran's left and right knee disabilities from 10 to 0 percent from October 9, 2014. A May 2016 rating decision granted an increased 10 percent rating for the Veteran's left knee disability from December 1, 2010; and an increased 10 percent rating for the Veteran's right knee disability from December 1, 2010. An April 2020 rating decision granted a separate 10 percent disability rating for right knee instability from August 9, 2019. This case was previously before the Board in June 2021 when it was remanded for additional development. It has now returned to the Board for further appellate action. Unfortunately, these issues must again be remanded as there has not been substantial compliance with the Board's previous remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to a Rating in Excess of 10 Percent for Left Knee Disability is Remanded. 2. Entitlement to a Rating in Excess of 10 Percent for Right Knee Disability is Remanded. In the June 2021 remand, the Board noted that a March 2021 VA examination report did not include findings pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016) (instructing that VA orthopedic examinations should include tested for pain on both active and passive motion, and in weightbearing and non-weightbearing (if applicable) and, if possible, with the range of the opposite undamaged joint). The purpose of the Remand was to cure this defect. The Veteran then underwent a VA examination in December 2021. The examiner considered the evidence of record including the Veteran's lay statements with regard to functional limitations of his left and right knees during the appellate period. The examiner also noted that there was evidence of pain with weightbearing. However, the examiner did not provide any findings regarding the severity of the Veteran's range of motion testing in weightbearing and non-weightbearing, as directed by the Board. As such, this part of the VA examination report was not compliant with the remand directives. Accordingly, another remand is required. 3. Entitlement to a TDIU prior to August 28, 2014 is Remanded. The Board is remanding the issues of higher staged ratings for the Veteran's left and right knee disabilities. As such could impact a decision on the issue of a TDIU, the issues are inextricably intertwined. Thus, a remand of a TDIU prior to August 28, 2014 is also warranted. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative, if any, and afford him an opportunity to submit any copies in his possession. 2. Following the receipt of outstanding records, forward the claims file to an appropriate VA examiner to assess the severity of the Veteran's service-connected left and right knee disabilities. The record, including a complete copy of this, and the prior remands should be made available for review in connection with the examination. Following a review of the record, the examiner should provide findings in regard to pain on range of motion testing and an estimation of functional loss, per Correia. A new physical examination is not deemed necessary unless stated by the examiner. The examiner should estimate the amount in degrees of range of motion lost due to pain in both weightbearing and non-weightbearing positions, and on both active and passive motion experienced by the Veteran since March 3, 2014. If the examiner cannot provide some or all such opinions, to include retrospective opinions, the examiner must make clear that he or she has considered all relevant, procurable data, but that any member of the medical community at large could not provide such an opinion without resorting to speculation. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.