Citation Nr: 1752360 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 09-15 116A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to a rating in excess of 10 percent disabled for a service-connected left knee injury, with surgical scar, chronic pain, and degenerative changes in the patella. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Giaquinto, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from July 1988 to February 1992 and from July 1997 to July 2000. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, CT. The Board notes that in a June 2015 brief, the Veteran raised the possibility that his service-connected knee disability has caused back and hip pain. To date, the Veteran has not filed a service connection claim for those disabilities. If he wishes, he may do so by filing a claim on the form prescribed by the Secretary. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Subsequent to the Board's prior remand, the Veteran underwent a new VA examination in April 2017. There, the examiner noted a diagnosis of a left knee injury with chronic pain and degenerative changes in the patella. According to the exam results, the Veteran did not report flare-ups of the knee or lower leg, but reported functional loss due to stiffness of the left knee. In October 2017, the Veteran submitted additional lay statements describing the extent of his symptoms. Specifically, he claimed that he experiences flare-ups of the knee that cause additional functional loss. The Veteran also submitted a statement from his wife who claimed that the Veteran experiences frequent, debilitating pain, and is supposed to be walking with a cane, due to instability. The Board notes that the Veteran, as a layperson, is competent to describe the symptoms he has experienced and his wife is competent to describe her personal observations. In light of these new assertions, as well as the ruling by the Court of Appeals for Veterans Claims in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Board must remand for a new examination that addresses any additional functional loss the Veteran experiences due to flare-ups. According to Sharp, when a Veteran complains of flare-ups, the examiner must "state their severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, per the Veteran, to what extent, if any, they affect functional impairment." 29 Vet. App. at 10-11. If feasible, functional loss due to flare-ups should be expressed in terms of the degree of additional range-of-motion loss. If the examiner cannot express functional loss in this manner without resorting to speculation, he or she "must explain the basis for his or her conclusion that a non-speculative opinion cannot be offered," e.g., whether that is due to the limitation of knowledge in the medical community at large, or due to insufficient information in the instant case. Accordingly, the case is REMANDED for the following action: 1. Arrange to have the Veteran scheduled for a new VA knee and leg examination by a physician other than the April 2017 examiner. The entire claims file, to include a complete copy of the Remand must be made available to the physician designated to examine the Veteran, and the report of examination should include discussion of the Veteran's documented history and assertions. All indicated tests and studies of the left knee and leg should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should take a history from the Veteran as to the progression of his disability. A detailed account of all symptomatology found to be present should be included in the examination report. This should include a discussion of functional loss due to pain, fatigue, or instability during flare-ups or following repetitive use of the left knee. The examiner should state the severity, frequency, and duration of flare-ups. To the extent possible, the examiner should report or estimate functional loss in terms of the degree of additional loss of range of-motion. If the examiner cannot express functional loss in this manner without resorting to speculation, he or she must explain the basis for his or her conclusion that a non-speculative opinion cannot be offered, e.g., whether that is due to the limitation of knowledge in the medical community at large, or due to insufficient information in the instant case. The examiner should also address the symptomatology of any scars associated with the Veteran's previous meniscectomy and patellar tendon rupture. Specifically, the examiner should discuss the Veteran's assertions that there are multiple scars and that they are painful, unstable, and have a total area equal to or greater than 39 square cm. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed report. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).