Citation Nr: 18142528 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 14-32 560 DATE: October 16, 2018 REMANDED Entitlement to an increased rating for status post right knee arthroscopy, rated as noncompensable prior to October 18, 2012, and 10 percent disabling thereafter, is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Marine Corps from June 2001 to June 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veterans Affairs. 1. Entitlement to an increased rating for status post right knee arthroscopy is remanded. This issue must be remanded for a new VA examination (VAX) due to deficiencies in the January 2013 VAX. The January 2013 VAX was inadequate because the examiner did not provide an opinion as to whether pain, weakness, fatigability, or incoordination during flare-ups significantly limit functional ability or produce additional range of motion loss. Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017); see also John v. Shulkin, No. 16-2487, 2018 U.S. App. Vet. Claims LEXIS 116, *19–*25 (Ct. Vet. App. Jan. 31, 2018) (citing Acevedo v. Shinseki, 25 Vet. App. 286 (2012) (finding examiners are qualified to translate lay evidence regarding the duration, severity, and characteristics of flare-ups to estimate additional loss of ROM during flare-ups). Additionally, the January 2013 VAX was inadequate because the examiner did not indicate if range of motion testing was conducted based on active and/or passive motion or pursuant to weight-bearing and nonweight-bearing conditions. 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Although ROM testing listed in 38 C.F.R. § 4.59 is not required when the examiner concludes that such ROM testing cannot be completed due to reasons such as veteran’s ability or veteran’s safety, the examiner did not provide a reason here. Therefore, remand is warranted for the Board to provide a VAX that complies with the holdings in Sharp and Correia. Lastly, the Veteran stated in her substantive appeal that an independent orthopedist told her she has “signs” of arthritis. However, x-rays conducted during the January 2013 VAX were negative for arthritis. The agency of original jurisdiction (AOJ) should request pertinent records from the Veteran’s private orthopedist. The matter is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for her private orthopedist referenced in her substantive appeal who reportedly told her she has “signs” of arthritis. Request records from 2011 to the present. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for an examination of the current severity of her service-connected status post right knee arthroscopy. The examiner must test and report the range of the Veteran’s right knee motion, in degrees, on active motion, and passive motion, including with pain, in degrees, on weight-bearing and nonweight-bearing. The examiner must review the claims file and elicit information regarding the severity, frequency, and duration of all symptoms, to include during flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify all symptoms and functional impairment due to the service-connected right knee disability alone, and discuss the effect of the Veteran’s service-connected right knee disability on 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). Sharp. v. Shulkin, 29 Vet. App. 26, 33 (2017) (citing Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)). U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Kutrolli, Associate Counsel