Citation Nr: 1753652 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 09-09 497 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial rating in excess of 10 percent for right knee patellofemoral pain syndrome. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his father ATTORNEY FOR THE BOARD P. M. Johnson, Counsel INTRODUCTION The Veteran served on active duty from January 1997 to July 2001 and from January 2003 to March 2004. This matter comes to the Board of Veterans' Appeals (Board) from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran and his father testified before the undersigned at a May 2015 Travel Board hearing. A transcript of the hearing has been associated with the claims file. This matter was previously remanded by the Board in August 2015, October 2016, and May 2017. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Regrettably, the Board finds that the Veteran's claim must be remanded again prior to adjudication by the Board. The Veteran was provided a VA examination to evaluate the current severity of his right knee disability in May 2017. As noted by the Veteran's representative in an October 2017 statement, the examiner failed to adequately provide an opinion on the extent of the Veteran's functional impairment during periods of flare-ups of the service-connected right knee condition. During VA examinations in April 2012 and February 2016, flare-ups of the right knee condition were reported; however, the May 2017 examiner did not describe the Veteran's reports of impairment during periods of flare-ups and stated that it could not be determined without resorting to mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability during a flare-up because the Veteran was not examined during a flare-up. In Sharp v. Shulkin, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Here, the Board finds that the examiner did not adequately explain why it was necessary to result to mere speculation regarding the Veteran's functional limitations during flare-ups, when previous reports of flare-ups were of record and it is unclear if lay statements were elicited from the Veteran regarding the Veteran's additional limitations during flare-ups. Accordingly, the Board finds that a new, VA examination should be provided that discusses any additional functional limitations during periods of flare-ups of the Veteran's condition, if possible. Additionally, the Board notes that the May 2017 examination stated that the Veteran did not have a documented diagnosis of arthritis of the right knee, and cited an August 2008 MRI. The Board notes that the record indicates that the Veteran underwent a whole body bone scan in relation to a November 2010 VA examination that stated "Within the lower extremities there is diffuse but symmetrical uptake array tracer to both hips, both knees. Impression: Abnormal bone scan with findings suggestive of mild osteoarthritic changes." While it is unclear from the examination if the osteoarthritic changes are of the right knee, the Board notes that if providing a negative diagnosis of arthritis, these findings should be discussed. Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate efforts to schedule the Veteran for a current VA examination to determine the severity, manifestations, and effects of his service-connected right knee patellofemoral pain syndrome. If the Veteran is required to RSVP for the examination, mailed notice of this requirement should be provided to the Veteran with proper amount of time to respond. The examiner must review the claims file in conjunction with the examination. The examiner must specifically provide an opinion regarding whether the Veteran's condition would result in additional functional limitations during periods of flare-ups. If the examination is not conducted during a period of a flare-up, the examiner must provide an estimated opinion of additional functional limitations based upon the evidence of record, including the Veteran's lay statements and the statements provided during the April 2012 and February 2016 VA examinations of record. If the examiner is unable to provide such an opinion, the inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Additionally, if the examiner does not diagnose osteoarthritis of the right knee, the examiner should discuss the findings of the bone imaging result of November 23, 2010 referenced by the November 2010 VA examination. The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of his claim or the claim may be rated based on the evidence of record. See 38 C.F.R. § 3.655. 2. After the above-development has been completed, readjudicate the Veteran's claim of entitlement to an initial rating in excess of 10 percent for right knee patellofemoral pain syndrome. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and an adequate opportunity to respond, after which the matter should be returned to the Board for further adjudication, if otherwise in order. 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. §§ 5109B, 7112 (2014). _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (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).