Citation Nr: 22017391 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 15-46 754 DATE: March 24, 2022 REMANDED Entitlement to a rating in excess of 10 percent for right knee patellofemoral syndrome, osteochondral defect, and degenerative joint disease (DJD) is REMANDED. Prior to January 13, 2021, entitlement to a rating in excess of 10 percent for right knee lateral instability is REMANDED. On and after January 13, 2021, entitlement to a compensable rating for right knee lateral instability is REMANDED. REASONS FOR REMAND The Veteran served honorably in the United States Marine Corps from September 2002 to September 2006. Upon review of the record, the Board concludes that further evidentiary development is necessary. Although the Board sincerely regrets this delay and is appreciative of the Veteran's service to his country, a remand is necessary to ensure VA provides the Veteran with appropriate assistance in developing his claims prior to final adjudication. 1. Entitlement to a rating in excess of 10 percent for right knee patellofemoral syndrome, osteochondral defect, and degenerative join joint disease (DJD) is remanded. 2. Prior to January 13, 2021, entitlement to a rating in excess of 10 percent for right knee lateral instability is remanded. 3. On and after January 13, 2021, entitlement to a compensable rating for right knee lateral instability is remanded. The Board has considered the Veteran's increased rating claim(s) for the service-connected right knee disability on multiple occasions. In August 2018, the Board remanded the claim(s) to the agency of original jurisdiction (AOJ) in order to obtain a VA examination report that addressed the current severity of the Veteran's service-connected right knee disability. In November 2020, the Board again directed the AOJ to secure a VA examination report that addressed the current severity of the Veteran's right knee disability. In May 2021, the Board denied the Veteran's claims for an increased rating for the service-connected right knee disabilities. In January 2021, the Veteran underwent a VA examination that addressed the current severity of the Veteran's service-connected right knee disability. In December 2021, the Court of Appeals for Veterans' Claims (Court) granted a Joint Motion for Remand (JMR) filed by the parties. By doing so, the Court vacated the Board's May 2021 decision for the increased-rating issues listed on the title page. The terms of the JMR indicated that a remand was necessary because the January 2021 VA examination did not address the Board's prior remand directive AND did not indicate, in terms of range of motion (ROM) degrees, where the Veteran's right knee pain begins. Consequently, the JMR found that the January 2021 VA examination report contravened the Board's prior remand directives. In the JMR, the parties indicated that a new examination was necessary to obtain an adequate assessment of the Veteran's right knee disabilities. Consequently, the matters are REMANDED to the agency original jurisdiction (AOJ) for the following action: 1. Schedule the Veteran for an appropriate VA examination to assess the current severity of his service-connected right knee disabilities. The electronic claims file, including a complete copy of this remand, must be made available to and reviewed by the examiner, and this fact should be noted in the accompanying medical report. All indicated studies, including x-rays, should be performed. In accordance with Correia v. McDonald, 28 Vet. App. 158 (2016), the examiner should record the results of range of motion (ROM) testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. If the right knee cannot be tested on "weight-bearing," then the examiner must specifically indicate that such testing cannot be done. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's right knee disability under the rating criteria. The examiner must conduct all indicated tests and studies, to include range of motion (ROM) studies. The examiner should test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups assessed in terms of the degree of additional ROM loss. If the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares. The examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. The examiner must 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) A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history and the relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case. 2. After the AOJ secures the necessary examination report, the claims file should be returned to the Board for additional appellate consideration. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board RLBJ, 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.