Citation Nr: 18141833 Decision Date: 10/12/18 Archive Date: 10/11/18 DOCKET NO. 10-33 825 DATE: October 12, 2018 REMANDED Entitlement for an increased rating for left knee patellofemoral syndrome in excess of ten percent is remanded. Entitlement for an increased rating right knee patellofemoral syndrome in excess of ten percent is remanded. REASONS FOR REMAND The Veteran served in the Army from April 1995 to July 2001. These matters come before the Board of Veteran’s Appeals (Board) from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. In a March 2017 decision, the Board denied the instant claims for higher ratings. The Veteran subsequently appealed these denial to the United States Court of Appeals for Veterans Claims (Court). In a May 2018 Amended Joint Motion for Remand (JMR), the Court vacated the Board’s March 2017 decision and remanded the claims to the Board for further adjudication. Entitlement to an increased rating for left and right knee patellofemoral syndrome is remanded. The parties to the May 2018 JMR agreed that the Board erred by relying on inadequate medical evidence when denying the Veteran’s increased rating claim in excess of 10 percent for both left and right knee patellofemoral syndrome. Specifically, the JMR found that the October 2016 and April 2009 VA examinations did not sufficiently inform the Board on the Veteran’s functional loss during flare-ups. The JMR relies on the holding in Sharp v. Shulkin, stating that the “the Court held that an examination is inadequate when an examiner declines to offer an opinion without resorting to speculation, even when the examiner acknowledges that a veteran was not suffering from flare-ups on examination, and “fail[s] to ascertain adequate information –i.e., frequency, duration, characteristics, severity, or functional loss –regarding [] flares by alternative means.” Id. at 34-35. Thus, on remand, the Board is directed to obtain an examination consistent with the guidance provided in Sharp in order to sufficiently inform the ultimate question of Veteran’s functional loss or explain the reason for the inability to do so. See Jones v. Shinseki, 23 Vet. App. 382 (2010) (if an examiner is unable to render a definitive opinion on an issue, he or she must explain the reason for that inability); see also Barr v. Nicholson, 21 Vet. App. at 311.” Therefore, the VA examination conducted on remand should address the functional limitations associated with a flare-up of the Veteran’s left and right knee patellofemoral syndrome. The Board remands this matter for an additional VA examination. On remand, the Veteran should be asked to furnish, or to furnish an authorization to enable VA to obtain, any additional private treatment records from providers who treated him for his left and right knee patellofemoral syndrome. Finally, given the time that will elapse on remand, updated VA treatment records should be obtained. The matters are REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records, to include updated VA treatment records dated from December 2015 to the present, should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Afford the Veteran an appropriate VA examination to determine the nature and severity of his left and right knee patellofemoral syndrome. The record, to include a complete copy of this remand, must be made available to the examiner, and the examination report should include a discussion of the Veteran’s documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner must provide all examination findings, along with a complete rationale for the conclusions reached. The examiner(s) should identify the current nature and severity of all manifestations of the Veteran’s left and right knee patellofemoral syndrome. The examiner(s) should record the range of motion of the left and right knee patellofemoral syndrome observed on clinical evaluation in terms of degrees. If there is evidence of pain on motion, the examiner(s) should indicate the degree of range of motion at which such pain begins, as well as whether such pain on movement results in any loss of range of motion. The examiner(s) should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner(s) is/are unable to conduct the required testing or concludes that the required testing is not necessary in this case he or she should clearly explain why that is so. It is also imperative that the examiner(s) comment on the functional limitations caused by flare-ups and repetitive use. In this regard, the examiner(s) should indicate whether, and to what extent, the Veteran’s range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. With specific regard to flare-ups, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner(s) should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner(s) cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner/s must make clear that s/he/they has/have considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. The examiner who conducts the knee examinations should state whether there is lateral instability or recurrent subluxation of the knees, and, if so, whether the instability is best characterized as slight, moderate, or severe. The examiner should state whether there is (CONTINUED ON NEXT PAGE) dislocated or removed semilunar cartilage, and, if so, the nature of the symptoms associated with such meniscus impairment. KRISTY L. ZADORA Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Iglesias, Law Clerk