Citation Nr: 1800457 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 10-19 164 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial rating in excess of 10 percent for right knee osteoarthritis. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Timothy C. King, Associate Counsel INTRODUCTION The Veteran had honorable active duty service in the United States Marine Corps from September 1981 to September 1985 and in the United States Army for the periods of October 1994 to August 1995 and February 2007 to June 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, granting service connection for right knee osteoarthritis and assigning a noncompensable (0 percent) disability rating. The Veteran timely appealed the assigned rating. A March 2010 rating increased the Veteran's disability evaluation for his right knee osteoarthritis to 10 percent, effective as of June 9, 2008. This rating decision constitutes a partial grant of the benefits sought on appeal as higher ratings are available under the rating schedule. The issue therefore remains on appeal and is for consideration by the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the additional delay is regrettable, the Board finds that remand is necessary in this case. Upon further review of the VA Examination from December 2016, there are deficiencies in the examination that must be addressed. The examiner noted that the Veteran reported flare-ups, experienced severe pain during flare-ups, and noted such occurring when he stood for more than 2-3 hours, sat more than 2-3 hours, or walked more than a mile. The examiner noted the Veteran's description of functional loss under ordinary circumstances, but did not address whether pain, weakness, fatigability or incoordination significantly limited the Veteran's functional ability during flare-ups. The examiner indicated that an opinion on functional ability could not be offered without mere speculation because the veteran was not examined during a flare-up. The examiner also did not offer an opinion on limitation of functional ability with repeated use over a period of time, indicating that the Veteran was not examined following repeated use over time. The United States Court of Appeals for Veterans Claims (CAVC) in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), recently held that direct observation of functional impairment during a flare-up is not a prerequisite to offering an opinion. An examiner must consider all procurable and assembled data before stating that an opinion cannot be reached. Id. The examiner must clearly indicate that they have obtained all tests and records that might illuminate the medical analysis. Id. An examiner must take these steps prior to stating that an opinion cannot be offered without resorting to speculation. Id. In Sharp, the examiner's conclusion that it was "not possible without mere speculation to estimate either loss of [range of motion] or describe loss of function" without "directly observing function under these circumstances" was insufficient because it did not note having obtained all procurable medical evidence before declining to offer an opinion. Id. at 36. Thus, the Board finds that an addendum opinion is required, as the examiner must offer an opinion based on estimates derived from information procured from procurable sources, including the lay statements of the Veteran. The examiner is advised that VA's Clinician's Guide specifically directs examiners to attempt to procure information necessary to render an opinion regarding flare-ups from veterans. Accordingly, the case is REMANDED for the following action: 1. Take appropriate steps to obtain additional procurable medical evidence that might be relevant in estimating loss of range of motion and loss of function during flare-ups. Such steps may include procuring additional medical documentation, if available, scheduling the Veteran for a new examination, and/or eliciting information from the Veteran through other appropriate means. Thereafter, return the file to the December 2016 examiner or to another qualified examiner for a complete review of the file and an addendum opinion. The VA examiner must express an opinion estimating loss of range of motion and estimating loss of functional ability during repetitive use and flare-ups. The examiner is advised that an opinion must be based on estimates derived from information procured from relevant sources, including the lay statements of the Veteran. VA's Clinician's Guide specifically advises examiners to try to procure information necessary to render an opinion regarding flare-ups from veterans. An opinion stating merely that the examiner is unable to evaluate, without mere speculation, functional ability after repetitive use as the Veteran was not examined following repeated use over a period of time is insufficient. An opinion stating merely that the examiner is unable to evaluate, without mere speculation, whether pain, weakness, fatigability or incoordination significantly limit functional ability with flare-ups as the veteran was not examined during a flare-up is insufficient. In addition to other complaints noted during repetitive use or flare-ups in the file, the examiner should address the contentions presented by the Veteran in the February 2015 correspondence indicating swelling, popping, and giving way, that he had to quit a contracting job, that he was late to work due to pain, as well as the July 2009 Statement in Support of Claim noting that the backs of both knees were very weak. 2. Then, readjudicate the Veteran's claims. The attention of the AOJ is drawn to the cases of Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) and Lyles v. Shulkin, No. 16-0994 (Vet. App. Nov. 29, 2017). If any benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned 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. §§ 5109B, 7112. _________________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, 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).