Citation Nr: 18146193
Decision Date: 10/30/18	Archive Date: 10/30/18

DOCKET NO. 08-11 525
DATE:	October 30, 2018
REMANDED
Entitlement to a rating in excess of 20 percent prior to February 11, 2014, outside periods of convalescence, and in excess of 40 percent from September 1, 2014, for a lumbar spine disability is remanded.
Entitlement to a rating in excess of 10 percent for left knee limitation of flexion is remanded.
Entitlement to a rating in excess of 10 percent for left knee limitation of extension is remanded.
Entitlement to a rating in excess of 10 percent for right knee limitation of flexion is remanded.
Entitlement to a rating in excess of 10 percent for right knee limitation of extension is remanded.
REASONS FOR REMAND
The Veteran had active service in the Army from June 1972 to June 1976.  In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge in August 2010.  A transcript of that hearing is of record.
In September 2017, the Board denied the claims, which the Veteran appealed to the United States Court of Appeals for Veterans Claims (“CAVC” or “the Court”).  In June 2018, the Court issued an order that vacated the Board decision and remanded the claims for compliance with a Joint Motion for Partial Remand (JMPR).
In the JMPR, the parties agreed that the previous VA examinations for the Veteran’s lumbar spine and bilateral knee disabilities were not adequate as previous examinations failed to properly consider the Veteran’s pain on range of motion and the impact of the Veteran’s reported flare-ups.  As such, the Veteran should be afforded new VA examinations.
Specifically, the JMPR indicated that in Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017),  the  Court  held  that  the  examiner’s  failure  to  “elicit  relevant  information  as  to  the  veteran’s  flares  or  ask  him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record – including the veteran's lay information –   or explain why she could not do so . . . .” rendered the examination inadequate.  
The matters are REMANDED for the following action:
1. Obtain VA treatment records from May 2016 to the present.
2. Then, schedule the Veteran for a VA examination to determine the current severity of his lumbar spine and bilateral knee disabilities.  In so doing, the examiner should ensure to the extent possible, consistent with 38 C.F.R. § 4.59, that the report include results of active and passive motion, in addition to the results following repetitive motion testing. If it is not possible to complete any of the range of motion testing described above, it should be explained why.  The examiner should indicate if testing was performed under active or/and passive, weight-bearing, and/or non-weight-bearing conditions.  
In addition, the examiner should address the Veteran’s reports of flare-ups and provide an estimate of the functional loss of range of motion during flare-ups.
The examiner should review the JMPR (dated 6/14/2018 “CAVC Decision”) for an explanation of why the previous VA examinations were found to be inadequate.
 
MATTHEW W. BLACKWELDER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	T. Berryman, Counsel