Citation Nr: 18140719
Decision Date: 10/05/18	Archive Date: 10/05/18

DOCKET NO. 16-25 047
DATE:	October 5, 2018
REMANDED
Entitlement to an increased rating for residuals of meniscal tear, right knee, post-operative makoplasty of medial compartment (right knee disability), currently rated 10 percent disabling, is remanded.
Entitlement to an increased rating for residuals of meniscal tear, left knee, post-operative (left knee disability), currently rated 10 percent disabling, is remanded.
REASONS FOR REMAND
The Veteran served on active duty from March 1984 to June 2004.
This case comes before the Board of Veterans’ Appeals (Board) on appeal of a July 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In that decision, the RO assigned temporary total ratings through April 2015 for the Veteran’s right and left knee disabilities based on surgical treatment necessitating convalescence.  The RO also assigned 10 percent ratings for each knee following the three-month post-surgical period.  The Veteran timely disagreed with the 10 percent ratings.


Increased ratings
The Veteran contends that his right and left knee disabilities warrant higher than a 10 percent disability ratings as his range of motion has been limited by pain.
The Veteran was afforded examinations in August 2014, June 2015, and June 2017 to determine the severity of his service-connected right and left knee disabilities. However, the examination reports are inadequate for VA adjudication purposes. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).
A recent Court decision addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017).  In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given.  It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id.  The Board notes that the examiners in this case did not attempt to estimate additional motion loss during flare-ups or explain why an estimate cannot be given.  While the June 2017 examiner stated that an opinion could not be provided without resort to speculation, the examiner did not indicate that the speculation was due to lack of knowledge within the medical community contrary to Sharp.
A remand is therefore warranted to provide the Veteran a new VA examination to determine the present level of disability, to include consideration of flare-ups as indicated in Sharp.
The matters are REMANDED for the following action:
Schedule the Veteran for an examination to determine the current severity of his right and left knee disabilities.  The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups.  To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s right knee disability, and left knee disability alone and discuss their effects on any occupational functioning and activities of daily living.  If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).
 
Jonathan Hager
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R. Maddox, Associate Counsel