Citation Nr: 22018479 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 11-10 549 DATE: March 29, 2022 REMANDED Entitlement to a disability rating in excess of 20 percent for right knee instability is remanded. Entitlement to a disability rating in excess of 10 percent for right knee degenerative joint disease (DJD), i.e., arthritis, also is remanded. REASONS FOR REMAND This appeal to this Board of Veterans' Appeals (Board) originated from a July 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). In March 2021 the Board granted a higher 20 percent rating for the Veteran's right knee instability, but denied any higher rating, also denied a rating higher than 10 percent rating for the DJD (arthritis) in this knee. The Veteran appealed that decision to the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) which, pursuant to a November 2021 Joint Motion for Partial Remand (JMPR), issued an ORDER in December 2021 vacating the Board's decision to the extent it was unfavorable, i.e., to the extent it did not grant an even higher rating for the right knee instability and denied any higher rating for the DJD of this knee. The Court remanded these claims back to the Board for further development and readjudication. To comply with the Court's ORDER, the Board in turn is remanding these claims back to the RO (AOJ). 1. Entitlement to a rating higher than 20 percent for right knee instability is remanded. 2. Entitlement to rating higher than 10 percent for right knee DJD (arthritis) also is remanded. The Veteran most recently had a VA compensation examination assessing the severity of his right knee disability all components of it, in December 2020, so before the Board's prior adjudication of these claims in March 2021. The results of that examination partly were reason the Board increased the rating for the instability to 20 percent in that March 2021 decision. However, in the November 2021 JMPR, the contesting parties nonetheless cited potential deficiencies in that December 2020 VA examination and indicated the Board should "address the ... probative value assigned to the December 2020 VA examination." More specifically, the Board must determine whether the examination was "substantially compliant" with the Board's prior remand directives concerning flare-ups the Veteran experiences and their functional impact. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). During that December 2020 VA examination, the Veteran explained that, during flare-ups, he has "sharp pain" that, in turn, causes additional difficulty moving about, so with his mobility. Other medical and lay evidence of record also indicates his flare-ups cause additional functional limitations. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Similarly, 38 C.F.R. § 4.59 requires considering the functional impact of painful motion, indeed, even when the disability does not involve arthritis although this one at issue does. See Burton v. Shinseki, 25 Vet. App. 1 (2011). All that said, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). the Court has held that 38 C.F.R. § 4.40 does not require a separate rating for pain, rather, provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). Moreover, in Mitchell, the Court held that the evaluation of painful motion as limited motion only applies when limitation of motion is 0-percent disabling (i.e., noncompensable) under the applicable diagnostic code. The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with DC 5003 regarding arthritis, it does not follow that the maximum rating is warranted under the applicable diagnostic code pertaining to range of motion simply because pain is present throughout the range of motion. See id. In December 2009 the Veteran submitted a written statement explaining that when he experiences sharp knee pain it "significantly affects my day-to-day activities" as well as "reduces" the "freedom of movement." A December 2012 VA examination determined that, because of his knee pain, the Veteran "can no longer run." It was noted the pain extends throughout his leg. In a March 2017 letter, he explained that the pain prevents him from climbing stairs, and that "on bad days" he "can't move" his right knee. More medical comment consequently is needed better addressing the functional impact of the Veteran's pain and other symptoms including when they are most problematic (i.e., during "flare ups" or prolonged or repeated use). The December 2020 examiner surmised there was "no basis to offer additional losses of function or motion." In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." As well, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flare ups from the Veterans, themselves, when a flare-up is not observable at the time of examination. Accordingly, these claims are REMANDED for the following action: Have the Veteran reexamined to reassess the severity of his right knee disability all components of it, so both the extent of instability in this knee and the extent the arthritis also in this knee causes limitation of motion on flexion and/or extension, including when the Veteran's pain and other symptoms are most problematic (i.e., during "flare ups" and after prolonged or repeated use of this knee). To this end, in responding, the examiner must consider and address the Veteran's lay statements regarding the impact of his flare ups on his mobility and functionality, even if not described in this specific way or necessarily occurring at time of this reexamination, so considering his mention of especially "bad days", etc. If it is not possible to respond without resorting to mere speculation, the examiner must expressly indicate this but, as importantly, explain why that is the case. In other words, merely saying he/she cannot respond will not suffice. Rationale for the responses is essential, regardless of whether favorable or conversely unfavorable to these claims, preferably citing to findings or other evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Neville, 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.