Citation Nr: 1754313 Decision Date: 11/28/17 Archive Date: 12/07/17 DOCKET NO. 15-20 076 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating higher than 10 percent for status post excision of osteochondroma, left proximal tibia; with a separate 10 percent rating for associated instability. 2. Entitlement to service connection for a psychiatric disorder, to include bipolar disorder and chronic adjustment disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. McCabe, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The Veteran served on active duty in the US Army from October 1974 to February 1977. This appeal to the Board of Veterans' Appeals (Board) is from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida dated in July 2006, August 2014, and May 2015. Procedurally, in a July 2006 rating decision, the RO, in pertinent part, denied the Veteran's claim for service connection for bipolar disorder. The RO's August 2014 rating decision increased the Veteran's rating for his service-connected status post excision of osteochondroma, left proximal tibia from 0 to 10 percent, retroactively effective from April 29, 2014 (date of the claim); and denied reopening a service connection claim for bipolar disorder due to a lack of new and material evidence. The May 2015 rating decision then granted a separate 10 percent rating for instability associated with the left knee osteochondroma, effective from April 29, 2014. An October 2015 rating decision again denied reopening the service-connection claim for a bipolar disorder, and also denied a claim for service connection for chronic adjustment disorder. The case was previously before the Board in February 2017, at which time, the Board reopened the Veteran's claim for service connection for bipolar disorder; recharacterized the reopened claim as one of entitlement to service connection for a psychiatric disorder, to include bipolar disorder and chronic adjustment disorder; and remanded the reopened service connection claim, as well as the increased rating issue, to the Agency of Original Jurisdiction (AOJ) for further development, to include the provision of VA psychiatric and orthopedic examinations, and to obtain additional service personnel records, Social Security Administration (SSA) records, and medical treatment records. That development having been completed, the case has returned to the Board. As concerning the Veteran's claim for service connection for a psychiatric disability, the Board notes that, as indicated, the Board originally adjudicated this matter as a claim to reopen, finding that the July 2006 rating decision denying service connection for bipolar disorder was final and binding. See February 2017 Rating Decision. The Board reopened the claim, and remanded it, in part, to obtain potentially relevant service personnel records (SPRs). See id. In October 2017, partial SPRs were associated with the file. See October 2017 Correspondence from the Veteran (enclosing copies of SPRs). See also 38 C.F.R. § 3.156(c) (2017) (reflecting that, where at any time after VA issues a decision on an original claim, VA receives relevant service records that existed and had not been associated with the claims file when it first decided the claim, VA will reconsider the claim on its merits). Moreover, as detailed below, the Board's decision awarding service connection for a psychiatric disability is based, in part, on those newly obtained records. See 38 C.F.R. § 3.156(c)(3) (reflecting that, an award made based all, or in part, on the newly received service department records is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the general provisions of 38 C.F.R. § 3.156(a) (concerning petitions to reopen based on new and material evidence) applicable to a previously decided claim). The claim for increased ratings for left knee osteochondroma and left knee instability is addressed in the REMAND portion of the decision below is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's preexisting psychiatric disability was aggravated during active service, and the record does not contain clear and unmistakable evidence that such aggravation was due to the natural progress of the disease. CONCLUSION OF LAW The Veteran has a psychiatric disability that preexisted active service and was permanently aggravated by active service. 38 U.S.C. §§ 1110, 1111, 1153, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran asserts that he is entitled to service connection for an acquired psychiatric disability, stating that his military service aggravated his pre-existing psychiatric condition. For the following reasons, the Board finds entitlement to service connection is warranted for an acquired psychiatric disorder. To establish entitlement to service connection for any disability on a direct basis, the record must contain competent evidence of (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A veteran is considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. A history of conditions existing prior to service recorded at the time of the entrance examination does not constitute a notation of such conditions for the purpose of establishing whether the Veteran was of sound condition at enlistment. See 38 C.F.R. § 3.304(b)(1). However, the recording of such a history in the entrance examination will be considered together with all other material evidence in determinations as to inception of the disability at issue. See id. In order to rebut the presumption of sound condition, VA must show by clear and unmistakable (obvious or manifest) evidence both (1) that the disease or injury existed prior to service and (2) that the disease or injury was not aggravated by service. See § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003). Thus, when the presumption of sound condition applies, the claimant is not required to establish aggravation by showing that the preexisting disease or injury increased in severity during service. See VAOPGCPREC 3-03. Rather, the burden remains with VA to show by clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service. See id.; Wagner, 370 F.3d at 1096; see also Horn v. Shinseki, 25 Vet. App. 231, 235 (2012) (observing that "even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness"). VA may find a lack of aggravation under 38 U.S.C. § 1111 if clear and unmistakable evidence shows that there was no increase in disability during service, or that any increase in disability was due to the natural progress of the preexisting condition. Wagner, 370 F.3d at 1096 (citing 38 U.S.C. § 1153 (West 2014) and 38 C.F.R. § 3.306 (2014)); but see Horn, 25 Vet. App. at 238 (emphasizing that "neither the presumption of aggravation of section 1153 nor the regulation implementing that statutory provision, § 3.306, has any application to an analysis under the aggravation prong of the presumption of soundness in section 1111"). If this burden is met, then the veteran is not entitled to service connection benefits. Wagner, 370 F.3d at 1096. On the other hand, if the presumption of soundness applies and VA fails to show by clear and unmistakable evidence that the preexisting condition was not aggravated by active service, then the presumption has not been rebutted. See id. at 1094 (holding that Congress intended to "convert aggravation claims to ones for service connection when the government fails to overcome the presumption of soundness under section 1111"). In that case, the claim will be considered as a normal claim for service connection and, if granted, no deduction for the degree of disability existing at the time of entrance will be made. Id. at 1096 (citing 38 C.F.R. § 3.322). In other words, the claim may not be denied, nor benefits deducted, on the basis of a finding that the disability in question preexisted active service, if VA does not also meet its evidentiary burden of showing that the disability was not aggravated during service. Id. If the presumption of soundness has not been rebutted, the disease or injury that manifested in service is deemed incurred in service, such that the second element of service connection is established. See Gilbert, 26 Vet. App. at 53 (citing Horn, 25 Vet. App. at 236). Nevertheless, the claimant must still establish a current disability related to the in-service injury or disease. Id. (citing Holton v. Shinseki, 557 F.3d 1363, 1367 (Fed. Cir. 2009) ("The presumption of soundness . . . does not relieve the veteran of the obligation to show the presence of a current disability and to demonstrate a nexus between that disability and the in-service injury or disease or aggravation thereof.")). The clear-and-unmistakable-evidence standard is a much more formidable evidentiary burden to meet than the preponderance-of-the-evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the clear-and-unmistakable-evidence standard is more demanding than the clear-and-convincing-evidence standard, which in turn is higher than the preponderance-of-the-evidence standard). It is an "onerous" and "very demanding" evidentiary standard, requiring that the evidence be "undebatable." Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993)). Here, although there were no psychiatric disorders noted at entry into service, the record shows, and the Veteran maintains, that he had been diagnosed with psychiatric disorders prior to his entry into service. Accordingly, the Board must determine whether the presumption of soundness has been rebutted. See Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012) (holding that the presumption of soundness applies only when a disease or injury manifests in service which was not noted on entry, and a question arises as to whether it preexisted service). For the following reasons, the Board finds that the presumption of soundness has not been rebutted. The Veteran's September 1974 entrance examination report shows that the Veteran was found to be psychiatrically normal on clinical evaluation. See September 1974 Report of Medical Examination. Neither did he report any psychiatric problems at entry. See September 1974 Report of Medical History. Therefore, the presumption of soundness attaches. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b)(1). There is clear and unmistakable evidence that the Veteran's acquired psychiatric disorder preexisted service. In this regard, psychiatric treatment providers have repeatedly determined that the Veteran's longstanding psychiatric problems had their onset during his childhood. See, e.g., May 2015 Psychiatric Evaluation from T.C., M.D. (finding that "it is clear that the patient started suffering from classic bipolar disorder around the age of 15"); July 2010 Comprehensive Psychological Report from E.R.D., Ph.D. (noting "bipolar spectrum characteristics" with psychiatric manifestations beginning during his childhood). Moreover, as noted, the Veteran has repeatedly stated that he initially began experiencing psychiatric symptomatology and was diagnosed with bipolar disorder several years prior to his entry into active service. See, e.g., May 2015 Statement in Support of Claim (VA Form 21-4138) (reporting that "bipolar disorder . . . [was] noted when [he] was 15 [years old]"). Thus, there is clear and unmistakable evidence that the Veteran had a psychiatric disorder prior to his active duty. However, the record does not contain clear and unmistakable evidence that the Veteran's acquired psychiatric disorder was not aggravated by service. In fact, the probative medical and lay evidence of record suggests the opposite. For example, in the May 2015 private psychiatric evaluation, the evaluating clinician indicated that the Veteran's experience in the military exacerbated his psychiatric symptomatology, resulting in the emergence of psychiatric manifestations including "oppositional and defiant behavior and general lack of discipline." See May 2015 Psychiatric Evaluation from T.C., M.D. Additionally, VA treatment records reflect notations that the Veteran's diagnosed childhood psychiatric problems "became more apparent" during his active service. See, e.g., February 2006 VA Mental Health Outpatient Consultation Report (reflecting a military history during which the Veteran's mental health symptoms "became more apparent"). Moreover, the Veteran has asserted in statements put forth throughout the pendency of the claim that his psychiatric symptoms increased in severity during his active service, resulting in disciplinary actions and eventually leading to his early discharge. See, e.g., Statements in Support of Claim (VA Forms 21-4138) dated in April 2015 and May 2015. In this regard, the Board notes that the Veteran is competent under the law to describe what he experienced while in military service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Moreover, the Veteran is competent to report experiencing psychiatric symptoms, as such symptoms are certainly capable of lay observation. See Davidson, 581 F.3d at 1316 and Jandreau, 492 F.3d at 1376-77 (finding that, in certain circumstances, lay evidence may be competent to establish a medical etiology); see also Washington, 19 Vet. App. 362; Layno, 6 Vet. App. 465; Barr, 21 Vet. App. at 307-08 (holding that lay statements are competent to establish the presence of observable symptomatology). Further, the Veteran's statements regarding the onset and duration of psychiatric symptomatology are bolstered by the statements of his spouse, who confirms the increased severity of his psychiatric during his active service, as well as the continued manifestation of his psychiatric symptoms to the present. See April 2016 Letter from the Veteran's Spouse (noting her observation that the Veteran's psychiatric symptoms "progressed" during his active service). See also Barr, 21 Vet. App. 303 (finding that the "Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). Moreover, the Veteran's available service treatment and personnel records lend additional credence to his claims. In this regard, as noted, the Veteran was found to be psychiatrically normal on his September 1974 entrance evaluation. See September 1974 Report of Medical Examination. Subsequent medical evaluation in September 1975 additionally reflects a normal clinical psychiatric evaluation. See September 1975 Report of Medical Examination and Report of Medical History. Service personnel records dated in February and September 1976 further note that the Veteran was described as "an outstanding young man" and a "very professional soldier" who "has been doing an excellent job" and who "will make an outstanding NCO." See Enlisted Evaluation Reports dated in February 1976 and September 1976. Nevertheless, as noted throughout the record, the Veteran subsequently received multiple disciplinary infractions that led to his eventual discharge. See, e.g., February 2017 VA Psychiatry Note (reflecting "[d]isciplinary action while on active duty includ[ing] one Article 15 for being AWOL and one Article 15 for 'acting up'"); March 2017 VA Mental Disorders Disability Benefits Questionnaire (DBQ) (reflecting the Veteran's "dysfunctional behavior during military service[,] . . . oppositional and defiant tendencies, [and] failure to adapt to a military environment"). And this behavior has been linked by competent medical evidence to the Veteran's psychiatric diagnoses. See May 2015 Psychiatric Evaluation from T.C., M.D. Thus, VA has not met its burden to rebut the presumption of soundness, as the evidence is at least in a state of relative equipoise as to whether the Veteran's psychiatric disorder was aggravated by active service. Therefore, the second element of service connection is established and benefits may not be deducted or denied on the basis of evidence of pre-existence of a psychiatric disorder. See Wagner, 370 F.3d at 1096. As to the first and third elements of service connection, the evidence reflects that the Veteran has a currently diagnosed psychiatric disorder, variously diagnosed during the appellate period as bipolar disorder and anxiety disorder not otherwise specified (NOS). See, e.g., February 2017 VA Psychiatry Outpatient Note (reflecting current diagnoses including "Unspecified Bipolar & Related Disorder" and "Unspecified Anxiety Disorder"); May 2015 Psychiatric Evaluation from T.C., M.D. (reflecting an axis I diagnosis of bipolar disorder). Further, a nexus between the Veteran's current psychiatric diagnoses and his period of active service is likewise established by the findings of aggravation reflected in the May 2015 private psychiatric evaluation. See May 2015 Psychiatric Evaluation from T.C., M.D. This evidence thus indicates that the Veteran's current acquired psychiatric disorder is the result of or a continuation of the disorders he had in service. Although the March 2017 VA examiner adduced findings to the contrary, the Board affords no more probative weight to this opinion than it does to the opinion of the Veteran's private psychiatrist. In this regard, both clinicians based their opinions on a factually accurate history of the Veteran's active duty service, a detailed knowledge of a Veteran's past clinical history, and a thorough and articulate summary of the relevant medical principles. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (finding that "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion"). Moreover, although the Board finds both opinions to be equally probative, it is important to note that there is no indication in the record that the VA medical officer is somehow more qualified to opine as to the nature and etiology of the Veteran's psychiatric disorder than the private psychiatrist. See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001); Van Slack v. Brown, 5 Vet. App. 499, 502 (1993); and Chisem v. Brown, 4 Vet. App. 169 (1993) (noting that there is no "treating physician rule" requiring the Board to give additional evidentiary weight to opinions of doctors who have evaluated or treated the Veteran over time, but it is permissible for the Board to bear this length of treatment in mind when considering just how familiar with the Veteran's condition the clinician may be). Accordingly, when the evidence in favor of a claim is equally probative as evidence against the claim, the benefit of the doubt is resolved in the Veteran's favor. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Therefore, service connection is warranted for the Veteran's psychiatric disorder. ORDER Entitlement to service connection for a psychiatric disorder is granted. REMAND Unfortunately, the Veteran's remaining claim of entitlement to increased ratings for left knee osteochondroma and left knee instability must be remanded yet again for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. As noted, the Board remanded the claim in February 2017 for the provision of a VA examination to determine the current nature and severity of his left knee disability. See February 2017 Board Decision. The Board specifically determined that "the August 2014 VA knee examination did not, per 38 C.F.R. § 4.59, report range of motion in terms of the Veteran's active motion, passive motion, weight-bearing motion, and non-weight-bearing motion." See id. Additionally, the Board instructed the examiner to "report all ranges of motion in terms of the Veteran's active motion, passive motion, weight-bearing motion, and non-weight-bearing motion" pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016). See id. The Veteran was provided the requisite reexamination in March 2017. See March 2017 VA Knee and Lower Leg Conditions DBQ. Although the March 2017 VA examination report provides range of motion results for the left knee and the undamaged right knee, it is unclear from a review of the report whether the examinations included range of motion testing in both active and passive motion, weight-bearing, and nonweight-bearing situations. See Correia, 28 Vet. App. at 166 (holding that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing 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). If only active range-of-motion testing was performed, and the other tests were deemed not necessary or possible, the examiner did not state this in the report. As this is a determination that requires medical judgment, the Board may not make its own independent finding on this issue. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Further, in the March 2017 VA examination report, the examiner noted that the Veteran did not report experiencing flare-ups. See March 2017 VA Knee and Lower Leg Conditions DBQ. But see August 2014 VA Knee and Lower Leg Conditions DBQ (reflecting the Veteran's reports of significant flare-ups of increasingly severe pain and instability affecting his mobility). The examiner further stated that he was unable to determine the extent of any functional limitation during a flare-up or with repeated use over time in terms of degrees of additional range of motion (ROM) loss, noting that "such an opinion is not feasible" because "[a]ny decrease in ROM with repeated use over time is merely speculative and highly subjective (on the Veteran's word alone) as neither this medical provider nor any other medical provider is present to objectively and repetitively measure (with a goniometer) the change in ROM with repeated use over time" and because "the Veteran denies objectively and repetitively measuring (with a goniometer) ROM with repeated use over time." See id. In this regard, the Board notes that, recently, in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the United States Court of Appeals for Veterans Claims (Court) addressed the adequacy of a VA examiner's opinion when providing an opinion as to additional functional loss during flare-ups of a musculoskeletal disability, pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). Noting that a VA joints examination that fails to take into account the factors listed in §§ 4.40 and 4.45, including those experienced during flare-ups, is inadequate for evaluation purposes, the Court held that an examining VA clinician must "obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves." See Sharp, 29 Vet. App. at 32, 34-35 (citing DeLuca, 8 Vet. App. at 206-207 and Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011)). Flare opinions should thus be "based on estimates derived from information procured from relevant sources, including the lay statements of veterans," and should, "if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." See id. Accordingly, before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must "elicit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why she could not do so." See Sharp, 29 Vet. App. at 34-35 (citing DeLuca, 8 Vet. App. at 206-207; Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011) (finding inadequate a medical opinion where an examiner did not offer an opinion as to additional function loss during flares "despite noting the appellant's assertions" regarding the frequency, duration, and severity of those flares); and Petitti v. McDonald, 27 Vet. App. 415, 429-30 (2015) (holding that credible lay evidence of functional loss due to pain, including during flare periods, observed outside of the VA examination context could constitute objective evidence in support of an evaluation). Here, the VA examiner's opinion that a determination as to the extent of any functional limitation during a flare-up or with repeated use over time in terms of degrees of additional range of motion (ROM) loss was "not feasible" in the absence of range of motion measurements taken "with a goniometer" during a flare is inadequate for rating purposes. See Sharp, 29 Vet. App. at 35 (recognizing that "direct observation of functional impairment during a flare-up is not a prerequisite to offering an opinion"). Specifically, it is not clear from the VA examiner's opinion that he "'considered all procurable and assembled data' before stating that an opinion cannot be reached" without resort to speculation. See id. at 33 (quoting Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). Thus, in light of the foregoing, the Board finds that this matter must be remanded for a new VA examination that includes range of motion testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of motion of the opposite undamaged joint, as well as an opinion addressing the issue of limitation of motion during flare-ups. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain and associate with the claims folder any outstanding VA treatment records. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature, extent and severity of his left knee symptoms and the impact of these and his other service-connected conditions on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Thereafter, upon receipt of all additional records, and any additional notification and/or development deemed warranted, schedule an appropriate VA compensation examination to assist in determining the nature and current level of severity of his service-connected left knee disability. The Veteran's claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner in conjunction with the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. The examiner should elicit a full history from the Veteran. The examination should include any necessary diagnostic testing or evaluation, i.e. X-rays, MRI studies, and/or range of motion studies in degrees using a goniometer. All pertinent symptomatology should be reported in detail. In particular, the examiner should test the range of motion using a goniometer in active motion, passive motion, weight-bearing, and nonweight-bearing, for the joint in question and any paired joint(s). See Correia v. McDonald, 28 Vet. App. 158 (2016). The examiner should describe any pain, weakened movement, excess fatigability, instability of station, and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and any additional relevant evidence of record (including the VA treatment and examination reports, the Social Security Administration (SSA) records, and the Veteran's private treatment records), the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. To the extent possible, the examiner must express any functional loss in terms of additional degrees of limited motion (flexion and extension) of the Veteran's left knee (i.e., the extent of the Veteran's pain-free motion), to specifically include if his pain was not ameliorated by his medication regimen. See Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012) (holding that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria). If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, whether favorable or unfavorable, and citing the objective medical findings leading to the conclusions. If the examiner is unable to answer any question without a resort to speculation, then he or she should so indicate and provide a rationale for why an answer could not be provided. In any event, the type of test performed (i.e. active or passive, weight-bearing or nonweight-bearing), must be specified. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. 4. Next, review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any examination report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 5. Finally, after completing all of the above, and any additional development deemed warranted, readjudicate the claims on appeal. If the benefits on appeal remains denied, furnish the Veteran and his representative with a copy of a supplemental statement of the case (SSOC) and allow an appropriate time for response. Thereafter, return the file to the Board for further appellate consideration. 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. §§ 5109B, 7112 (2012). ______________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs