Citation Nr: 1802581 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 12-02 434 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an initial disability rating higher than 10 percent for degenerative joint disease of the right knee. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M.G. Mazzucchelli, Counsel INTRODUCTION The Veteran served on active duty from August 1969 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2016, the Board remanded the case for further development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that he is entitled to a higher initial rating for his service connected right knee disability. The most recent examination of the right knee was conducted in January 2015. Remand for a new VA examination to address the Correia and Sharp standards is required. 38 C.F.R. § 4.2. In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held 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 38 C.F.R. § 4.59. Thirty-eight C.F.R. § 4.59 (2017) states 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 the range of the opposite undamaged joint." As such, pursuant to Correia, an adequate VA joints examination must, wherever possible, include range of motion testing on active and passive motion and in weight-bearing and nonweight-bearing conditions. The examinations of record do not include all of the required findings. In Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the Court addressed the adequacy of "mere speculation" opinions. The Court explained that case law and VA guidelines do not require direct observation of functional impairment after repetitive use or during a flare-up as a prerequisite to offering a DeLuca opinion. Indeed, it is not expected that such observation will usually occur; therefore, VA examiners should offer opinions based on estimates derived from information procured from all relevant sources, including the lay statements of veterans. If a non-speculative opinion still cannot be offered, the VA examiner must explain the basis for this conclusion. It must be apparent that the inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large and not a limitation - whether based on lack of expertise, insufficient information, or unprocured testing - of the individual examiner. The most recent VA examination noted the Veteran's report of flare-ups, and the examiner estimated that the Veteran's functional ability would be further limited with repeated use over a period of time range of motion. This range of motion was estimated as an additional 15 degrees of lost flexion. The examiner also indicated that pain during a flare would cause additional functional limitation, but was unable to describe this in terms of range of motion. The examiner did not provide any explanation for his inability to express this impairment in terms of range of motion. On remand, the examiner is asked to estimate the additional range of motion loss during flares, and if unable, to explain why. Additionally, the Board notes that the January 2015 VA examiner provided joint stability test results for the left knee, but not the right knee which is on appeal. On remand, the examiner is asked to discuss stability test results for the service-connected right knee disability. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to assess the current severity of his right knee disability. The examiner must review the entire claims file in conjunction with the examination. The right knee should be tested for pain on both active and passive motion and in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint (the left knee). These findings are required by VA regulations as interpreted by courts. If for any reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, or is not medically appropriate, in this case; he or she should clearly explain why that is so. The examiner should also express an opinion as to whether pain, weakness, fatigability, or incoordination cause additional functional impairment on repeated use over time or during flare-ups. The examiner should assess the additional functional impairment in terms of the degree of additional range-of-motion loss, if possible. If the Veteran is not being observed after repetitive use or during a flare-up, the examiner should still estimate any additional functional loss during flare-ups or on repeated use, based on the Veteran's description of his flares' severity, frequency, duration, and/or functional loss manifestations. If it is not feasible to determine the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups, without resorting to speculation, the examiner must provide an explanation for why this is so. The examiner is further advised that the inability to provide an opinion without resorting to speculation must be based the limitation of knowledge in the medical community at large and not a limitation - whether based on lack of expertise, insufficient information, or unprocured testing - of the individual examiner. The examiner should also address whether there is any right knee joint instability y and if so, the severity of such. A complete rationale must be provided for all opinions expressed. 2. Thereafter, readjudicate the claim. If the benefit sought on appeal remains denied, issue a supplemental statement of the case and give the Veteran and his representative the opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter 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 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). _________________________________________________ D. JOHNSON 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).