Citation Nr: 1752492 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 10-16 640 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a rating in excess of 20 percent for left knee disability, status post surgical repair. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from December 2004 to July 2005, with a period of active duty training from February 1987 to September 1987. This matter comes before the Board of Veterans' Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (Court). This matter originally came to the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. That decision granted service connection for the disability at issue effective from the May 9, 2008 date of claim. RO-level jurisdiction over the Veteran's claims-file currently resides with the RO in St. Louis, Missouri. The Veteran presented testimony before the undersigned at a Travel Board hearing in March 2014, and a transcript of the hearing is associated with the claims-file. In July 2016, the Board issued a decision that denied entitlement to a rating in excess of 20 percent for left knee disability. The Veteran appealed this determination to the United States Court of Appeals for Veterans Claims (Court). In September 2017, the Office of General Counsel for the Department of Veterans Affairs and the Veteran's representative before the Court (hereinafter "the parties") filed a Joint Motion for Remand (Joint Motion) that was granted by the Court in September 2017. The July 2016 Board decision was vacated, and the case has now been returned to the Board for further consideration in accordance with the terms of the Joint Motion. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Joint Motion explained that in this case "none of the VA examinations tested for range of motion on weight bearing and non-weight bearing," explaining that such testing was necessary for an examination to be adequate for the purposes of appellate review in this case. In this regard, the Joint Motion specifically cited the Court's holding in Correia v. McDonald, 28 Vet. App. 158 (2016). In Correia, the Court held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include certain range of motion testing whenever possible in cases of joint disabilities. The last sentence of 38 C.F.R. § 4.59 provides that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59. The Court further indicated that whether a joint is weight-bearing is a medical question that has to be answered by the examiner, not the adjudicator. The Board concludes, in accordance with the findings of the Joint Motion, that the findings presented by the existing VA examination reports of record do not meet the specifications of Correia. The Court also recently issued a significant opinion addressing whether a VA examiner is permitted to decline to offer an estimate as to additional functional loss during flare-ups if the veteran is not undergoing a flare-up at the time of the examination. In Sharp v. Shulkin, No. 16-1385 (September 6, 2017), the Court recently held that the Board may accept a VA examiner's assertion that he or she cannot offer such an opinion without resort to speculation only after it determines that the examiner's conclusion is not based on the absence of procurable information or on a particular examiner's shortcomings or general aversion to offering an opinion on issues not directly observed. It must be clear that such an opinion is not procurable based on a lack of knowledge among the "medical community at large" and not merely on a lack of expertise, insufficient information, or unprocured testing on the part of the specific examiner. Accordingly, in directing the needed new VA examination in this case, the Board shall also present instructions to ensure compliance with the recent holding in Sharp. The Joint Motion discussed: "Although the evidence shows that Appellant experiences functional loss due to slow movement, instability, pain on movement, and reduced strength, the Board did not explain how it regarded this functional loss." The Joint Motion specifically cited the contents of VA examination reports dated in December 2009 and April 2012. The Joint Motion explained that "[w]hile the Board noted Appellant had muscle strength of 4/5, it did not provide any discussion of how it related this information to an appropriate rating." During the processing of this remand, the new VA medical opinion provider shall be asked to attempt to provide estimations of the Veteran's functional impairment in terms of limitation of range of motion in accordance with the Court's holdings in Correia and Sharp, which may significantly assist with accounting for such functional loss in the application of the rating criteria and assignment of an appropriate disability rating. The Joint Motion further explains that the now-vacated Board decision failed to adequately explain its consideration of whether the Veteran may be "entitled to a separate rating under DC [Diagnostic Code] 5257." In this regard, the Joint Motion notes that "[t]he Board determined that Appellant did not have left knee flexion limited to 45 degrees or recurrent subluxation or lateral instability to warrant a separate rating pursuant to 38 C.F.R. § 4.71a, DC 5257," and the Joint Motion comments: "Although Appellant reported left knee buckling, instability, giving away, and requiring a cane ..., the Board dismissed this evidence because instability was not found on the VA examinations. However, 38 C.F.R. § 4.71a, DC 5257 does not require instability be determined by examination." The Joint Motion discusses that "[i]t is not clear why the Board discounted Appellant's lay statements of instability where the DC does not indicate that only medical evidence of instability is acceptable." To facilitate informed appellate adjudication satisfying the requirements of the Joint Motion, the new VA medical opinion provider shall be asked to offer an opinion on the question of whether the Veteran's description of left knee buckling, instability, giving away, and requiring a cane is consistent with the nature of the Veteran's diagnosed left knee disability and the objective clinical findings, even if instability is not detected at the time of a clinical examination of the knee. Finally, the Joint Motion found that the Board inadequately explained how it "determined that referral for extraschedular consideration was not warranted." In this regard, the Joint Motion noted that "[a]ccording to 38 C.F.R. § 4.71a, Diagnostic Code 5261, knee extension limitation to 15 degrees warrants a 20% evaluation; and limitation to 20 degrees warrants a 30 percent evaluation." The Joint Motion explained that the Board's explanation for "determin[ing] Appellant's symptoms were contemplated by the rating schedule" was inadequate in that "the Board did not explain how it considered evidence that Appellant experienced symptoms of atrophy, deformity, effusion, and swelling." To facilitate informed appellate adjudication satisfying the requirements of the Joint Motion, the new VA medical opinion provider shall be asked to clarify the nature and extent of any functional impairment attributable to symptoms of atrophy, deformity, effusion, and swelling of the left knee in this case. Accordingly, the case is REMANDED for the following action: 1. The AOJ should associate with the claims file any outstanding pertinent treatment records, including additional VA treatment records (such as those that may have been created since the last such update of the claims-file). 2. After the record is determined to be complete, the AOJ should afford the Veteran a VA examination to determine the current severity of his left knee disability. The Veteran should be interviewed and all indicated tests and studies should be accomplished. All findings should be reported in detail. The Veteran's claims folder must be reviewed by the examiner in conjunction with the examination. The examiner is asked to offer responses to the following: a) The examiner should identify and completely describe all current symptomatology. The examiner should specifically state range of motion findings pertinent to the Veteran's left knee disability. The examination should record the results of range of motion (1) on BOTH active and passive motion, (2) in weight-bearing and non-weight-bearing, and (3) of the opposite undamaged joint (to the extent applicable/possible). If the examiner is unable to conduct the required testing he or she should clearly explain why that is so. b) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups. The examiner should assess OR ESTIMATE the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If the Veteran is not having a flare-up when examined, the examiner should determine whether he or she can estimate, given the Veteran's description of symptoms, what his range of motion would be on flare-up. If it is not feasible to offer such an opinion to any degree of medical certainty without resort to speculation, the examiner must provide a specific explanation for why this is so. If such an opinion is not procurable based on a lack of knowledge, then the inability to offer such an opinion must be based on a lack of knowledge among the "medical community at large," and not merely a lack of expertise, insufficient information, or unprocured testing on the part of the examiner. c) The examiner should review the prior VA examination reports of record concerning the Veteran's left knee disability (in particular, the December 2009 and April 2012 VA examination reports discussed by the Court-endorsed Joint Motion, and also including the pertinent reports dated in June 2008 and September 2014). The examiner should attempt to render, if possible to do so without resorting to mere speculation, a retrospective opinion that identifies the ranges of motion of the Veteran's left knee in active motion, passive motion, weight-bearing, nonweight-bearing, and in comparison to the opposite undamaged joint (to the extent applicable/possible) at each time the left knee was previously examined with range of motion testing for rating purposes. The examiner should also attempt to render, if possible to do so without resorting to mere speculation, a retrospective opinion that identifies the additional functional impairment on repeated use or during flare-ups (in terms of the degree of additional range of motion loss) at each time the left knee was previously examined with range of motion testing for rating purposes. If it is not possible to provide such opinions / estimations without resorting to mere speculation, the examiner should please so state and provide an explanation as to why such opinions / estimations cannot be given. d) The examiner should elicit information as to the frequency, duration, and severity of any associated symptomatology, and loss of function in daily activities, including work and physical activity. In particular, the examiner should note that the Court-endorsed Joint Motion in this case has found that evidence indicates that the Veteran experiences functional loss due to slow movement, instability, pain on movement, and reduced strength. The examiner should indicate the functional impairment caused by the left knee disability in the Veteran's ability to perform normal work functions. The examiner should portray any related functional loss in terms of additional range of motion loss. If the examiner is unable to do so, the examiner must indicate why. e) To facilitate informed appellate adjudication satisfying the requirements of the Joint Motion, the examiner is asked to offer an opinion on the question of whether the Veteran's description of left knee buckling, instability, giving away, and requiring a cane is consistent with the nature of the Veteran's diagnosed left knee disability and the objective clinical findings, even if instability is not detected at the time of a clinical examination of the knee. f) To facilitate informed appellate adjudication satisfying the requirements of the Joint Motion, the examiner is asked to clarify the nature and extent of any functional impairment (including, if possible, in terms of the degree of additional range of motion loss) attributable to symptoms of atrophy, deformity, effusion, and swelling of the left knee in this case. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If an opinion cannot be provided without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. The AOJ should then review the record and readjudicate the claim on appeal. If the issue on appeal remains denied to any extent, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative an opportunity to respond, and return the case to the Board. The appellant 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). _________________________________________________ M. C. GRAHAM 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) (2016).