Citation Nr: 18144685 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 16-18 019 DATE: October 25, 2018 ORDER Entitlement to an increased rating higher than 30 percent for cervical spine degenerative joint disease (DJD) and degenerative disc disease (DDD) is denied. Entitlement to an effective date earlier than January 3, 2012, for limitation of flexion of the right knee due to strained medial collateral ligaments with DJD and cruciate instability is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED Entitlement to service connection for a memory condition is remanded. Entitlement to an initial rating higher than 10 percent for limitation of flexion of the right knee due to strained medial collateral ligaments with DJD and cruciate instability is remanded. Entitlement to an increased rating higher than 30 percent for right knee due to strained medial collateral ligaments with DJD and cruciate instability is remanded. Entitlement to an increased rating higher than 20 percent for distant fracture status-post surgery of the right shoulder is remanded. FINDINGS OF FACT 1. The Veteran’s cervical spine DJD more nearly approximated flexion of 15 degrees or less, with no unfavorable ankylosis of the entire cervical spine. 2. In November 2005, the RO awarded service connection for strained medial collateral ligaments of the right knee with DJD and cruciate instability, rated as 30 percent disabling and effective from November 13, 2000. The Veteran did not appeal the decision. 3. On January 3, 2012, the Veteran submitted a letter, which the RO interpreted as an application for increased rating of the right knee disability. 4. In September 2013, the RO awarded service connection for a separate initial rating for limitation of flexion of the right knee, rated as 10 percent disabling and effective from January 3, 2012. 5. The claims file includes no statement or communication from the Veteran, or other document, received by VA prior to January 3, 2012, that constitutes a claim for service connection or an increased rating for a right knee disability. 6. The preponderance of the evidence reflects that the Veteran’s service-connected disabilities are of such nature and severity as to prevent him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an increased rating higher than 30 percent for a cervical spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code (DC) 5242-5237. 2. The criteria for an effective date earlier than January 3, 2012, for service connection for limitation of flexion due to a right knee disability have not been met. 38 U.S.C. §§ 5103, 5103A, 5107(b), 5110; 38 C.F.R. §§ 3.102, 3.400. 3. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1974 to July 1981. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran properly appealed his claims for increased ratings and effective date for service connection for an initial rating for limitation of flexion due to a right knee disability. 1. Entitlement to an increased rating higher than 30 percent for cervical spine DJD and DDD Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in this decision is, therefore, undertaken with consideration of the possibility that different ratings may be warranted for different time periods. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath, 1 Vet. App. at 589. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that his service-connected cervical spine disability symptoms warrant a rating higher than 30 percent. The Veteran filed his claim for an increased rating in January 2012. When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Under the General Rating Formula for Diseases and Injuries of the Spine, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 30 percent rating is warranted for forward flexion of the cervical spine of 15 degrees or less; or favorable ankylosis of the entire cervical spine. Following the criteria set forth in the General Rating Formula for Diseases and Injuries of the Spine, in relevant parts, Note (1) instructs to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Under current provisions for rating intervertebral disc syndrome (IVDS), IVDS (preoperatively or postoperatively) is evaluated either under the General Rating Formula for Diseases and Injuries of the Spine as noted above, or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, DC 5243. For evaluation of IVDS, with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent rating is assignable. With incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent rating is assignable. Id. For purposes of evaluations under DC 5237, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. An August 2013 VA examination report reflects diagnosis of status post-operative cervical spine DJD associated with right shoulder condition. The Veteran reported flare-ups that resulted in limited head movement and severe neck pain. Range of motion was flexion of 35 degrees, with pain at 35 degrees; extension of 45 degrees with no pain; right lateral flexion of 35 degrees, with pain at 20 degrees; left lateral flexion of 45 degrees, with pain at 35 degrees; right lateral rotation of 65 degrees, with pain at 65 degrees; and left lateral rotation of 80 degrees, with pain at 70 degrees. There was no additional limitation of motion after repetition, and there was functional loss due to less movement than normal and pain on movement. The Veteran’s C-6 and C-7 were tender to palpation; but he had normal strength testing, deep tendon reflexes, and sensory examination. He had no muscle atrophy, radicular pain or other signs of radiculopathy, and no IVDS. He used a cervical collar regularly, and his posture and gait were normal. The examiner found that there were contributing factors of pain, weakness, fatigability and/or incoordination and there was additional limitation of functional ability of the cervical spine during flare-ups or repeated use over time. The degree of loss of range of motion during pain on use or flare-ups was approximately 10 degrees for cervical flexion, 20 degrees for right lateral rotation and 10 degrees for right lateral flexion. In a September 2016 affidavit, the Veteran reported that he had constant pain and discomfort in his neck. He described the pain as sharp and stabbing whenever he moved his head around. He had limited range of motion, and could only move his head normally for a short time if he took enough medication. He described hearing a clicking noise in his neck, and stated that he had cracked cervical vertebrae. He wore a neck brace at night to sleep and when he was driving so he did not move his head around too much. The pain also increased with weather changes. He rated the pain as a constant six or seven out of 10 in the warm months, and a constant eight or nine out of 10 in the cold months. Upon review of the evidence, the Board finds that an increased rating higher than 30 percent for cervical spine disability is not warranted. The evidence reflects that the Veteran experienced flexion of 35 degrees with pain at 35 degrees. The August 2013 VA examiner found that the Veteran’s neck pain could additionally limit functional ability during flare ups and repetitive use over time approximately 10 degrees with flexion. This would result in cervical flexion of 25 degrees during flare-ups or repetitive use over time. However, there is no evidence that there are symptoms approximating unfavorable ankylosis of the entire cervical spine or of the entire spine, which would warrant a higher disability rating. To the contrary, the examiner found no ankylosis, and treatment records do not reflect a finding of ankylosis. Likewise, in his September 2016 affidavit, the Veteran reported that he had limited range of motion but did not contend that he had ankylosis. See Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997). Consideration has been given to an increased evaluation for the Veteran’s cervical spine disability under other potentially applicable diagnostic codes. See Schafrath, 1 Vet. App. at 595. However, the record reflects that the Veteran has not been diagnosed with IVDS. The Board further finds that no additional separate ratings are warranted for neurological disorders. In that connection, the Board notes that the Veteran had no symptoms of radiculopathy, or bladder and bowel problems. The Board has also considered the Veteran’s contentions that his cervical spine disability is more disabling than his current rating. However, as noted above, the Veteran would warrant a higher rating with unfavorable ankylosis of the entire cervical spine or unfavorable ankylosis of the entire spine. Here, there is no evidence of ankylosis either in the medical records or based on the Veteran’s lay statements. The Board has considered the Veteran’s claim for increased rating for a cervical spine disability and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 2. Entitlement to an effective date earlier than January 3, 2012, for limitation of flexion of the right knee due to strained medial collateral ligaments with DJD and cruciate instability The Veteran contends that he is entitled to an effective date earlier than January 3, 2012, for the award of service connection for an initial rating of 10 percent rating for limitation of flexion of the right knee due to DJD and cruciate instability. Unless specifically provided otherwise, the effective date of an award of disability compensation is set in accordance with the facts found, but cannot be earlier than the date of receipt of the claim for the compensation that was granted. 38 U.S.C. § 5110(a). If the claim for compensation was received within one year of separation from service, the effective date is the day following separation from service. See 38 U.S.C. § 5110(b)(1); see also 38 C.F.R. § 3.400(b)(2)(i) (the effective date for a claim for disability compensation is the date of receipt of claim or the date entitlement arose, whichever is later, unless filed within a year of separation). The Veteran asserts that he is entitled to an effective date prior to January 3, 2012, for the award of service connection for limitation of flexion of the right knee. For the following reasons, the currently assigned effective date of January 3, 2012, is the earliest effective date assignable for the claim as a matter of law. In this case, the Veteran filed a claim for increased rating for his right knee disability on January 3, 2012. On September 19, 2013, the RO continued the Veteran’s prior rating for 30 percent for right knee strained medial collateral ligaments with DJD and cruciate instability, and awarded service connection for limitation of flexion of the right knee due to DJD and cruciate instability, rated as 10 percent disabling and effective from January 3, 2012, the date of the Veteran’s claim for increased rating. In his December 2013 notice of disagreement (NOD), the Veteran contended that he should be granted an earlier effective date for the awarded of service connection for limitation of flexion of the right knee due to DJD and cruciate instability. The Board must consider whether any evidence of record prior to January 3, 2012, could serve as a formal or informal claim in order to entitle the Veteran to an earlier effective date for his disability. In this regard, any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155. The Board notes that VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the appeal in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015 will be applied in this case. There is no document submitted prior to January 3, 2012, that indicates an intent to pursue such a claim. Moreover, the Veteran has not asserted that he ever filed a claim prior to January 3, 2012. As noted above, the effective date of an original claim for compensation is the date of claim or date entitlement arose, whichever is later. Even assuming that entitlement arose prior to the date of claim, the law and regulations mandate that the proper effective date would be the date of claim. As there is no claim for entitlement to service connection, either formal or informal, that was received by VA at any time prior to the January 3, 2012, the date of claim, the proper effective date for the grant of service connection for limitation of flexion of the right knee due to DJD and cruciate instability is January 3, 2012. Although the Board is sympathetic to the Veteran’s argument that an effective date earlier than January 3, 2012, should be awarded for the grant of service connection, the Board is bound by the laws and regulations that apply to veterans’ claims. 38 U.S.C. § 7104(c); 38 C.F.R. §§ 19.5, 20.101(a). As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Entitlement to a TDIU The Veteran contends that he has been unable to secure substantially gainful employment due to his service-connected disabilities since at least 1991. VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 24.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The central inquiry is, “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system, such as the orthopedics, will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). The Board must evaluate whether there are circumstances in the Veteran’s case, apart from any nonservice-connected disability and advancing age, which would justify a TDIU due solely to the service-connected disabilities. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The Veteran’s service-connected disabilities are: right knee disability, rated 30 percent; cervical spine disability, rated 30 percent; right shoulder disability, rated 20 percent; tinnitus, rated 10 percent; limitation of flexion of the right knee, rated 10 percent; and replacement of the left index finger status post amputation, bilateral hearing loss, painful right shoulder scar, and headaches, all rated as noncompensable. The Veteran has a combined rating of 70 percent from May 17, 2010. The Board notes that the Veteran’s cervical spine disability, right knee disabilities, and right shoulder disability are orthopedic disabilities and therefore must rated as a single disability under 38 C.F.R. § 4.16. The combined ratings are 60 percent from November 13, 2000. Hence, the Veteran meets the percentage criteria for a TDIU in 38 C.F.R. § 4.16(a) from November 13, 2000, when he had one single disability rated at 60 percent or more. Even so, to grant TDIU it must be found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Consequently, the Board must determine whether the Veteran’s service-connected disabilities combine to preclude him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a “living wage”). Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341(a), 4.19 (2016). In making its determination, VA considers such factors as the extent of the service-connected disabilities, and employment and educational background. See 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. The evidence of record reveals that the Veteran has a high school diploma and he was employed at the golf course owned and operated by his ex-wife’s family until 1991. A March 2012 letter from the Veteran’s VA physician reflects that he had treated the Veteran since August 2005. The physician noted that the Veteran had multiple chronic medical conditions, to include chronic neck and lower back pain, which required high dose opiates; DJD of the right knee; and chronic memory loss. He explained that the Veteran’s chronic pain made it difficult for him to concentrate and focus on things. He opined that the Veteran continued to be unable to work as a result of his medical conditions and was unlikely to be able to work in the future. A July 2014 assessment from a physician indicated that the Veteran could not work due to the combined effects of his service-connected disabilities. The physician noted that he had chronic low back, cervical, shoulder, and foot pain; became fatigued from his opiates medication; and that he had not been able to work since 1991. A May 2016 assessment by C.B, a vocational expert, reflects that he teleconferenced with the Veteran in May 2016 and reviewed the Veteran’s claims file. He noted that the Veteran’s lack of restful sleep due to pain required that he take random breaks throughout the day, lasting a total of six hours per day. Further, he noted that the Veteran’s pain medication made him dizzy and drowsy for three hours after he took it in the morning. He acknowledged that the Veteran worked from 1981 to 1991 as a manager at a family-owned mini-golf, but opined that this work was tantamount to sheltered work because it was conducted under the auspices of a family business milieu and he was permitted to work (or not to work) as his right upper extremity impairments dictated. Additionally, there was no chance of his being fired as his wife’s family owned the business and he was the chief manager. Instead, C.B. noted that the Veteran’s “vocational demise stemmed from the worsening of his dominant right upper extremity and his wife’s failing relationship,” which ultimately ended in divorce in 1991. He noted that the Veteran currently lived in an apartment owned by an elder gentleman, who stated that the Veteran was always tired and inclined to stay in bed for days due to pain. He also acknowledged that the Veteran had the opportunity to informally learn some art restoration techniques from his landlord, but he never earned any money with his limited knowledge because he was not fully trained and he was severely limited by his pain and his right upper extremity symptoms. Based on his interview with the Veteran and his review of the claims file, C.B. opined that it was at least as likely as not that the Veteran’s service-connected cervical spine, right knee, and right shoulder disabilities (especially his symptoms of pain, stiffness, and severely compromised movements) in and of themselves prevented him from securing and following a substantially gainful occupation. The above evidence shows that the Veteran’s service-connected right knee, cervical spine, and right shoulder disabilities have precluded him from obtaining and retaining substantially gainful employment. Moreover, the “applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner.” Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Entitlement to a TDIU is therefore warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3 REASONS FOR REMAND 1. Entitlement to service connection for a memory condition is remanded. The Veteran contends that he has memory problems, to include as due to his opiates medication. The Board notes that there is no VA examination addressing whether the Veteran had memory impairment and whether any memory problem is at least as likely as not due to or aggravated by his opiates medication for his service-connected disabilities. Therefore, a remand for a VA examination and opinion by an appropriate physician is necessary. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 2. Entitlement to an initial rating higher than 10 percent for limitation of flexion of the right knee due to strained medial collateral ligaments with DJD and cruciate instability; and increased rating higher than 30 percent for right knee due to strained medial collateral ligaments with DJD and cruciate instability is remanded. The Veteran’s right knee disabilities are currently rated as 10 percent disabling for limitation of flexion, and 30 percent disabling for DJD and cruciate instability. The Board notes that the Veteran was provided a VA examination for his right knee in August 2013. The Veteran reported that his right knee had worsened considerably and gave out unexpectedly fairly often. Range of motion was flexion of 120 degrees and extension of 0 degrees. There was no additional limitation of motion after repetition, but the examiner found that there was additional limitation of functional ability of the knee joint during flare-ups or repeated use over time of approximately 20 degrees with flexion. The Veteran used a knee brace regularly due to pain. The Veteran contends that his right knee disabilities have worsened. Specifically, April 2016 x-rays show severe degenerative osteoarthritis of the right femorotibial joint and moderate degenerative osteoarthritis of the right femoropatellar joint. In addition, in a September 2016 affidavit, he reported pain on a daily basis, using a brace and a cane constantly, that his knee was extremely unstable and gave out six to eight times per week, and that he could only walk 15 minutes before he had to sit down. He also stated that he did not go anywhere because he did not want to deal with the pain of walking and falling. Thus, the Board finds that a remand is required to have an examiner supplement the record with a report regarding the current severity of the Veteran’s right knee disability. See 38 U.S.C. § 5103A. This examination should also comply with the Court’s decisions in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017), which were issued well after the most recent exam in this case. 3. Entitlement to an increased rating higher than 20 percent for distant fracture status surgery of the right shoulder is remanded. The Veteran’s right shoulder disability is currently rated as 20 percent disabling. The Board notes that the Veteran was provided a VA examination for his right shoulder in August 2013. The Veteran reported that his shoulder had worsened due to arthritis and further dislocations. Range of motion was flexion of 160 degrees, abduction of 150 degrees, external rotation of 60 degrees, and internal rotation of 65 degrees with pain at 50 degrees. There was no additional limitation of motion after repetition, but the examiner found that there was additional limitation of functional ability of the shoulder joint during flare-ups or repeated use over time of approximately 20 degrees with abduction and 20 degrees with external rotation. The Veteran also experienced frequent episodes of dislocation. In a September 2016 affidavit, the Veteran contended that his right shoulder disability had worsened. Specifically, he reported daily constant pain and discomfort, that his shoulder popped out of his socket if he moved around too much, and that he could only lift his arm about one-third of the way up. He also stated that he had to be slow putting on his clothes because he could not lift his right arm above his head, and that he could not lift over 20 pounds. Thus, the Board finds that a remand is required to have an examiner supplement the record with a report regarding the current severity of the Veteran’s right shoulder disability. See 38 U.S.C. § 5103A. This examination should also comply with the Court’s decisions in Correia, 28 Vet. App. 158, and Sharp, 29 Vet. App. 26, which were issued well after the most recent examination in this case. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for a medical opinion addressing the nature and etiology of his claim for memory loss/problems. The examiner should address whether the Veteran’s memory loss is at least as likely as not (i.e., a 50 percent or greater probability) either (a) caused or (b) aggravated by the Veteran’s pain medication, to include opiates, which he takes for his service-connected disabilities. The examiner must provide a reason for his/her opinion. 2. Schedule the Veteran for a VA examination to determine the current severity of his right knee disability. The Veteran’s VA claims file and a copy of this Remand should be made available to, and should be reviewed by the examiner. All indicated tests and studies should be performed and findings reported in detail. The examiner should conduct the examination in accordance with the current disability benefits questionnaire, to include range of motion testing (expressed in degrees) in active motion, passive motion, weight-bearing, and nonweight-bearing consistent with 38 C.F.R. § 4.59 as interpreted in Correia, as well as the degree at which pain begins. In addition, pursuant to Sharp, the examiner must address any additional functional impairment or limitation of motion due to flare-ups, even if the Veteran is not currently experiencing a flare-up. The examiner must ascertain adequate information—i.e., frequency, duration, characteristics, severity, or functional loss—regarding his flares by alternative means, such as the medical treatment records and the Veteran’s lay statements. Such findings are consistent with the VA Clinician’s Guide. 3. Schedule the Veteran for a VA examination to determine the current severity of his right shoulder disability. The Veteran’s VA claims file and a copy of this Remand should be made available to, and should be reviewed by the examiner. All indicated tests and studies should be performed and findings reported in detail. The examiner should conduct the examination in accordance with the current disability benefits questionnaire, to include range of motion testing (expressed in degrees) in active motion, passive motion, weight-bearing, and nonweight-bearing consistent with 38 C.F.R. § 4.59 as interpreted in Correia, as well as the degree at which pain begins. (Continued on the next page)   In addition, pursuant to Sharp, the examiner must address any additional functional impairment or limitation of motion due to flare-ups, even if the Veteran is not currently experiencing a flare-up. The examiner must ascertain adequate information—i.e., frequency, duration, characteristics, severity, or functional loss—regarding his flares by alternative means, such as the medical treatment records and the Veteran’s lay statements. Such findings are consistent with the VA Clinician’s Guide. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel