Citation Nr: 18145699 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-12 549 DATE: October 29, 2018 REMANDED Initial increased rating for residuals of left knee injury, currently rated 10 percent disabling, is remanded. Initial increased rating for right knee strain, currently rated 10 percent disabling, is remanded. REASONS FOR REMAND The Veteran underwent a VA examination in November 2013. In Correia v. McDonald, 28 Vet. App. 158 (2016), it was held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The examination provided on remand should comply with the requirements of Correia to the fullest extent possible. With regard to flare-ups, the November 2013 VA examiner stated that pain could significantly limit functional ability during flare-ups or after repeated use over a period of time but the examiner was unable to express range of motion in degrees during a flare-up or after repeated use as the Veteran could not replicate the range of motion. In this regard, the Board calls attention to Sharp v. Shulkin, 29 Vet. App. 26 (2017), which essentially holds that the lack of opportunity to observe a flare-up is an insufficient basis for not estimating its functional effects. In light of this, the examiner should be asked to provide further comment on additional limitation of motion due to flare-ups. A July 2015 VA treatment record reflects the Veteran’s report that he was going to seek outside follow-up care for his knees. 02/08/2016 CAPRI at 14. The Veteran should be asked to identify any private medical providers, and such records should be requested and associated with the claims folder. Updated VA treatment records must be associated with the claims folder for the period from November 4, 2015. The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for any private medical providers with regard to his knees. Make two requests for the authorized records from the identified medical providers, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA treatment records for the period from November 4, 2015. 3. Schedule the Veteran for an orthopedic examination with an examiner with appropriate expertise to assess the severity of his bilateral knees. The virtual folder should be made available to the examiner for review in conjunction with the examination. Any medically indicated special tests should be accomplished, and all special test and clinical findings should be clearly reported. The examination of the knees should include range of motion studies. With regard to range of motion testing, the examiner should report at what point (in degrees) pain is elicited as well as whether there is any other functional loss due to pain, weakened movement, excess fatigability, incoordination, or flare-ups. These determinations must be expressed in terms of the additional limitation of motion in approximate degrees due to each functional factor that is present. The examiner should report on whether there is functional loss due to limited strength, speed, coordination or endurance. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight bearing. If the examiner is 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. The examiner should comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. The examiner should attempt to estimate additional loss of function during such flare-ups and such additional loss should be expressed in degrees of motion. The Court has held that an inability to observe a flare-up is an insufficient basis for not providing an estimate on additional functional limitation. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she should provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional should explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). With regard to each knee, the examiner should perform stability testing, report whether there is instability or subluxation, and express an opinion as to the severity of such instability or subluxation. The examiner should also provide an opinion concerning how the bilateral knee disabilities affect his functioning and activities. The examiner should describe the types of limitations he would experience as a result of his right and left knee disabilities. The examiner must provide a comprehensive rationale for the opinions. Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel