Citation Nr: 1804293 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 12-03 585 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a rating in excess of 10 percent for a left knee disability, status-post reconstruction of the anterior cruciate ligament (ACL). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from July 1988 to July 1992. This matter comes before the Board of Veterans' Appeals (Board) from a September 2010 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO). In March 2013 the Veteran testified before a Veterans Law Judge (VLJ) at a videoconference hearing. A transcript is of record. The VLJ who conducted the hearing is no longer employed at the Board. In December 2017 the Veteran indicated that she does not wish to appear at another hearing. The claim was remanded for additional development in October 2014 and June 2016. Additional development is needed before the claim can be decided on the merits. 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 appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran had a VA examination in January 2017 at which she reported left knee flare-ups with cold or if she used her left knee too much. During flare-ups there was increased pain and radiation to the ankle. The Veteran reported that the functional loss or impairment, including with repeated use over time, was that she was limited to walking for a quarter of a mile and standing for 10 to 20 minutes. The examiner wrote that he was unable to state without speculation if pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time or flare-ups because he was unable to assess the Veteran after repeated knee motion over time or during a flare-up. He did not use the information provided by the Veteran or obtain additional information from the Veteran or the treatment records such as the frequency, duration, characteristics, severity, or functional loss with repeated use over time or during flare-ups. "[B]efore the Board can accept an examiner's statement that an opinion cannot be provided without resorting to speculation, it must be clear that this is predicated on a lack of knowledge among the 'medical community at large' and not the insufficient knowledge of the specific examiner." See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017) (quoting Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)). Therefore, an addendum to the opinion must be obtained before the claim can be decided on the merits. VA treatment records to December 2017 have been associated with the claims file. The RO should attempt to obtain all relevant VA treatment records dated from December 2017 to the present, while the claim is in remand status. Bell v. Derwinski, 2 Vet. App. 611 (1992). 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 VA treatment records from December 2017 to the present. 2. Thereafter, obtain an addendum to the January 2017 VA examination report. The claims file, to include a copy of this remand, must be made available to and be reviewed by the examiner. The examiner is asked to address the following: In assessing functional loss, the effect of repeated use over time and any flare-ups and functional ability must be considered, and the examiner must consider all procurable and ascertainable data from the record and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion. If the examiner is unable to provide such an opinion without resorting to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. 3. After the requested development has been completed, readjudicate the Veteran's claim. If the benefits sought on appeal remain denied, the Veteran and her representative should be provided a supplemental statement of the case and an appropriate period of time to respond before the record is returned to the Board for further review. 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). _________________________________________________ Michael J. Skaltsounis 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).