Citation Nr: 18142646 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 13-00 430A DATE: October 17, 2018 REMANDED Entitlement to a disability rating in excess of 10 percent for a chronic left knee strain is remanded. Entitlement to a disability rating in excess of 20 percent for a right patellar dislocation and degenerative arthritis is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1987 to September 1997. In December 2013, the Veteran testified at a videoconference hearing before a Veterans Law Judge who is no longer employed with the Board. A transcript of the proceeding is in the record. In October 2018, the Veteran responded to Board correspondence asking whether he wanted another hearing an indicated that he did not. In an October 2018 correspondence, the Veteran’s attorney requested a 30-day extension of time to submit additional evidence. The extension request is denied. As explained below, the Veteran’s claims must be remanded. Consequently, the Veteran and his attorney will have ample time to submit additional evidence to the record prior to the Board deciding the claims on appeal. 1. Entitlement to a disability rating in excess of 10 percent for a chronic left knee strain is remanded. 2. Entitlement to a disability rating in excess of 20 percent for a right patellar dislocation and degenerative arthritis is remanded. While the record contains a contemporaneous VA examination dated in January 2017 regarding the Veteran’s service-connected bilateral knee disabilities, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26 (2017), in terms of assessing the extent of any additional functional loss suffered during flare-ups. The examination report relates that the examiner was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limited left knee functional ability with repeated use over a period of time. The examiner explained that there was no conceptual or empirical basis for making such a determination without directly observing function under the flare-up condition. However, the examiner did not state why the repetitive use test was not sufficient to determine the Veteran’s functional loss when the joints are used repeatedly over time. Further, the examiner did not indicate in the range-of-motion findings provided in the examination report the point at which knee pain was observed. Additionally, the January 2017 VA examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158 (2016). The examination report does not contain either passive range of motion measurements or weight-bearing testing. Remand is needed for a new VA examination with more thorough findings in compliance with both Sharp and Correia. Since the claims file is being returned it should be updated to include any outstanding VA treatment records. See 38 C.F.R. § 3.159 (c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from June 2018 to the present. 2. Then , schedule the Veteran for an examination of the current severity of his service-connected chronic left knee strain and right patellar dislocation and degenerative arthritis. The examiner must test and provide range-of-motion findings for the Veteran’s knees on active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also 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 service-connected bilateral knee disabilities alone and discuss the effect of the Veteran’s bilateral knee disabilities 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. M. E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jack S. Komperda, Associate Counsel