Citation Nr: 1802680 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 10-04 757 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for residuals of a right knee meniscectomy. 2. Entitlement to a rating in excess of 10 percent for right knee degenerative joint disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T.L. Bernal, Associate Counsel INTRODUCTION The Veteran had active military service from July 1988 to March 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In his February 2010 substantive appeal, the Veteran requested that he be afforded a hearing before a member of the Board. The Veteran was scheduled for his requested hearing in March 2016. However, the Veteran failed to report for his scheduled hearing without explanation. Therefore, the Veteran's hearing request is deemed to have been withdrawn. REMAND The Board finds that additional development is required before the claims on appeal are decided. Recently, the United States Court of Appeals for Veterans Claims (Court) found that examiners should offer flare-up opinions based on estimates derived from information procured from relevant sources, including lay statements of Veterans. The examiner must do all that reasonably should be done to become informed before concluding that a requested opinion cannot be provided without resorting to speculation. Sharp v. Shulkin, 29 Vet. App. 26 (2017). A review of the record shows that the Veteran was afforded a VA examination of his right knee in May 2017. A review of that examination report shows that while acknowledging that the Veteran was not experiencing a flare-up at the time examination, the examiner failed to provide adequate findings regarding the functional impairment that would be experienced by the Veteran during a flare-up. Rather, the examiner merely stated that such information could not be provided without resorting to speculation. The examiner did not provide an adequate rationale why such an opinion could not be provided without resorting to speculation. Therefore, the Board finds that the May 2017 VA examination report is not in compliance with the Court's decision in Sharp, and as such, is not adequate for adjudication purposes. Accordingly, the Veteran should be afforded a new VA examination to accurately determine the current level of severity of all impairment resulting from his right knee disability. Additionally, current treatment records should be identified and obtained before a decision is rendered in this case. Accordingly, the case is REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private medical records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the current level of severity of all impairment resulting from his service-connected right knee disability. The claims file must be made available to, and reviewed by the examiner. Any indicated tests and studies should be provided. The examiner should provide all information required for rating purposes, to specifically include range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for both the joint in question and paired joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, the examiner should clearly explain why that is so. The examiner must report whether there is a lack of normal endurance or functional loss due to pain and pain on use, including that experienced during flare-ups; whether there is weakened movement, excess fatigability, or incoordination. If the requested findings cannot be provided without resorting to speculation, the examiner should so state and provide a detailed rationale for that conclusion. 2. Confirm that the VA examination report and all medical opinions provided comport with this remand and undertake any other development determined to be warranted. 3. Then, readjudicate the claims on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, 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. §§ 5109B, 7112 (2012). _________________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).