Citation Nr: 1805013 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 12-04 799 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for a left knee disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Thaddaeus J. Cox, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1991 to April 1993. This matter comes before the Board of Veterans' Appeals (Board) from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in St. Petersburg, Florida. The Veteran testified in a video conference hearing before the undersigned Veterans Law Judge in May 2014. A copy of the transcript is of record. The Board remanded this matter in November 2014 and September 2016 for development. REMAND Although further delay is regrettable, the issue of entitlement to an increased rating for a left knee disability must be remanded for further development. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). In a September 2011 VA examination, the Veteran reported flare-ups in which pain increased with activities of daily living. The examiner noted arthritis was shown on imaging studies and opined that excess fatigability and pain on movement caused functional loss. In a July 2015 VA examination, the Veteran reported daily pain at 7 out of 10 when active, and 4 out of 10 when at rest, at worst. Flare-ups with stabbing pain were also reported. The Veteran reported pain at 7 out of 10 with gait and balance problems in a November 2015 note. In January 2016, the Veteran reported constant worsening pain at 9 out of 10 without medication, and at 5 out of 10 with medication. A February 2017 VA examination showed pain on active motion, with weight bearing, and on palpation, which the examiner opined to cause functional loss. Although functional loss is noted, there is no indication that the examiners considered whether the reported flare-ups represented occasional incapacitation due to pain. 38 C.F.R. § 4.71a Diagnostic Code 5003 (2017). Additionally, there is no indication that the examiners considered whether the reports of pain at 7 and 9 out of 10 represented chronic severe painful motion. 38 C.F.R. § 4.71a Diagnostic Code 5055 (2017). Since occasional incapacitation or chronic severe painful motion are required for higher ratings, the Board finds that a medical opinion addressing those matters is warranted. VA also has a duty to assist claimants in the development of facts pertinent to claims and VA must accomplish additional development of the evidence if the record currently before it is inadequate. 38 U.S.C. § 5103A (2012). In a February 2015 VA examination, the Veteran reported two flare-ups which required emergency room visits. However, there are no emergency room records associated with the file, nor is there an indication that the records were requested. Since those records may indicate occasional incapacitation or chronic severe painful motion, the Board finds that an additional records request is warranted. Accordingly, the case is REMANDED for the following action: 1. Confirm with the Veteran the date and name of the emergency room reported to have treated flare-ups in the February 2015 VA examination, and request the emergency room records, to include admit and discharge reports. Make as many requests as necessary to obtain the records. If it is determined that the records do not exist or that further attempts to obtain the records would be futile, a formal finding should be entered into the record and the Veteran should be notified and provided the opportunity to obtain and submit the evidence. 2. Schedule the Veteran for a VA knee examination to ascertain the current severity of service-connected left knee disabilities, to include any limitation of flexion, extension, and instability. The examiner must review the claims file and should note that review in the report. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examination should include a statement as the effect of the service-connected left knee disabilities on the Veteran's occupational functioning and daily activities. The knee examination must include range of motion testing expressed in degrees for both knees for active motion, passive motion, weight-bearing, and nonweight-bearing. Correia v. McDonald, 28 Vet. App. 158 (2016). The examiner is also specifically asked to describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion should be noted. If the Veteran describes flare-ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically. The examiner is also asked to indicate whether there is recurrent subluxation or lateral instability of the right knee, and if so, the severity of any recurrent subluxation or lateral instability. The examiner should also opine whether the reported flare-ups with hospitalization and pain rated between 7 and 9 out of 10 represents occasional incapacitation or chronic severe painful motion. In addition, the examiner should provide an opinion as to whether there is sever painful motion or weakness in the knee. The examiner should provide a complete rationale for any opinions provided. 3. Then, readjudicate the claim. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. 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 that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. § 5109B, 7112 (2012). _________________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board 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).