Citation Nr: 18142168 Decision Date: 10/16/18 Archive Date: 10/12/18 DOCKET NO. 08-35 867 DATE: October 16, 2018 REMANDED Entitlement to a rating in excess of 30 percent for left knee status post total knee replacement from June 1, 2012 is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1966 to August 1968. This matter comes before the Board of Veterans’Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA). In May 2011, March 2012, October 2015, and August 2018 the Board remanded this case for further development. In November 2011, the Veteran testified at a Travel Board hearing before a Veterans Law Judge (VLJ) who is no longer with the Board. A transcript of the Board hearing has been associated with the Veteran’s claims file. The Veteran did not respond to notification that the VLJ who that hearing is no longer employed by the Board and he had the right to schedule another Board hearing. Therefore, the Board has proceeded with adjudication of his appeal. See 38 C.F.R. § 20.707. The case is now assigned to the undersigned. Entitlement to a rating in excess of 30 percent for left knee status post total knee replacement and TDIU are remanded. VA examinations must include joint testing on both active and passive motion, and in weight-bearing and nonweight-bearing circumstances, with range of motion measurements. Correia v. McDonald, 28 Vet. App. 158 (2016). In this case, the December 2016 VA knee examination does not fully comport with the requirements of Correia. The examination report provides range of motion results for the left knee, but does not specify the type of testing on which these results were based, such as active or passive, weight-bearing or nonweight-bearing, or provide results for each type of test, as required. If only active range-of-motion testing was performed, and the other tests were deemed not necessary or possible, the examiner did not state that in the report. Moreover, while pain was noted the point at which pain started was not noted. Further, the United States Court of Appeals for Veterans Claims (Court) has held that with respect to flare-ups, VA examiners must do all that reasonably should be done to become informed before concluding that a requested opinion cannot be provided without resorting to speculation, including by soliciting information regarding frequency, duration, characteristics, severity, or functional loss. Sharp v. Shulkin, 29 Vet. App. 26 (2017). During the December 2016 VA examination, the Veteran indicated that he experienced flare-ups of the left knee that involved intermittent periods of painful motion, stiffness, swelling, weakness, and limited ambulation. He noted the pain was sharp and intense a 9 out of 10. He stated when he walks upstairs he always leads with the left leg and repeats a single step at a time; he uses a walking cane all the time; he has generalized knee stiffness for the first hour when he gets up in the morning; and after sitting for long periods his knees get stiff again. While the Veteran's statements suggest that his range of motion is further restricted during flare-ups, the examiner concluded that he was unable to state, without resorting to speculation, whether pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-ups because the veteran did not have a flare-up of the knee condition during the examination. As the December 2016 VA examination does not reflect the considerations required by Sharp, remand for an additional examination that addresses flare-ups of the Veteran's left knee in compliance with Sharp is required. The matter of entitlement to TDIU is inextricably intertwined with the Veteran's other claim; accordingly, it must be remanded as well. The matter is REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran's disabilities since August 2017. The AOJ should ensure that the complete records of all VA evaluations and treatment the Veteran has received for his disabilities are associated with the record. 2. After the above development has been completed, the AOJ should arrange for an orthopedic examination of the Veteran to assess the current severity of his service-connected left knee disability. The examiner must review the entire record in conjunction with the examination. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. All indicated tests or studies should be completed. Range of motion measurements must be included for active and passive motion, and weight-bearing and non-weight-bearing circumstances. If pain is noted, the point in the range of motion at which pain starts should be clearly noted. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran (the examiner should ask the Veteran to describe the frequency, severity, duration, and type of symptoms experienced during flare ups and the examiner should provide an opinion as to limitation of motion, if feasible, based on that information). If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale based on the fact that the Veteran is not having a flare-up at the time of the examination will not be deemed adequate. 3. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Roe, Associate Counsel