Citation Nr: 18146334 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 15-39 885 DATE: October 31, 2018 REMANDED Entitlement to a disability rating in excess of 10 percent for left knee arthritis is remanded. Entitlement to a disability rating in excess of 20 percent for instability of the left knee is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from April 1976 to November 1976. The Board notes that the Veteran perfected an appeal for claims for service connection for a back disability, a right knee disability, post-traumatic stress disorder and psychosis for the purposes of treatment. In an August 2016 rating decision, each of these claims were granted. As each grant represents a full grant of the benefits sought, those issues are no longer on appeal. See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). 1. Entitlement to a disability rating in excess of 10 percent for left knee arthritis is remanded. The Veteran seeks a rating in excess of 10 percent for his service connected left knee arthritis. In accordance with this claim for an increased rating, the Veteran was afforded a VA examination in March 2016. However, the examination report does not adequately address additional functional loss during flare-ups. The examiner noted that the Veteran reports flare-ups of the left knee. As to whether pain, weakness, fatigability or incoordination significantly limit functional ability with flare-ups, the examiner indicated that he was unable to say without resorting to mere speculation. The examiner explained that the Veteran was uncooperative. The Board will discuss the Veteran’s lack of cooperation in further detail in the next section of this remand. However, since the March 2016 examination, the Court of Appeals for Veterans Claims (Court/CAVC) has addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, No. 16-1385 (Vet. App. Sept. 6, 2017). In that case, the Court held that a VA examiner must attempt to elicit information from the record and from the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. The Court also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. Per the Court’s decision in Sharp v. Shulkin, the explanation provided by the March 2016 VA examiner is not adequate. While the Veteran was uncooperative with this examination, per the recent decision, a current assessment is necessary and must attempt to elicit information from the Veteran and the record regarding additional functional loss during flare-ups. Thus, in the VA examination conducted per this remand, the examiner must clearly state that he or she reviewed the record and attempted to elicit functional impairment information from the Veteran before stating that a degree estimate of range of motion loss due to functional impairment cannot be given. Then, the examiner still must provide an explanation of any inability to estimate motion loss in terms of degrees. 2. Entitlement to a disability rating in excess of 20 percent for instability of the left knee is remanded. The Veteran also seeks a rating in excess of 20 percent for his service connected left knee instability. The March 2016 VA examiner did not provide an assessment of the Veteran’s left knee instability and indicated that the Veteran was uncooperative. In fact, the entire March 2016 VA examination report reflects that the Veteran was uncooperative. However, the examination report does not suggest that the Veteran was simply unwilling to cooperate. The VA examiner noted that the Veteran had “odd behavior.” The examiner stated that the Veteran talked slowly, had a low tone of voice, wore sunglasses during the entire visit, as he did not want direct eye contact, and repeatedly stated “everyone is scared of me.” The Board notes that the record reflects that the Veteran has a psychiatric condition. Given the description provided by the VA examiner, the Board finds that the Veteran may have been unable to cooperate or inhibited by his psychiatric condition. As such, and given that the appeal is already being remanded as to the Veteran’s left knee, the Board finds it suitable to afford the Veteran another assessment of his left knee instability. The matters are REMANDED for the following action: 1. Have the Veteran identify any additional treatment records regarding his service-connected left knee disabilities (arthritis and instability). Obtain any outstanding VA records. For any identified private treatment records, provide the Veteran authorization to release private records and if received, obtain these records. The claims file and a copy of this remand must be made available to the reviewing examiner, and the examiner should indicate in the report that the claims file was reviewed. The Board notes that the Veteran is competent to attest to observable symptoms. 2. After obtaining any additional records, schedule the Veteran for a new VA examination with an appropriate examiner to ascertain the current severity and manifestations of his service-connected left knee disabilities. All relevant rating criteria must be addressed. i) The examiner is advised that it is necessary to consider, along with the schedular criteria, functional loss due to pain, fatigability, incoordination, pain on movement, and weakness. ii) Additionally, the examiner must test the Veteran’s range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If possible, the examiner must also test the undamaged joint. 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. iii) Importantly, in regard to additional functional loss due to flare-ups, the examiner must clearly state that he or she reviewed the record and attempted to elicit functional impairment information from the Veteran before stating that a degree estimate of range of motion loss due to functional impairment cannot be given. The examiner must also provide an explanation of any inability to estimate motion loss in terms of degrees. 3. After completing the above actions, readjudicate the claims on appeal. If the benefits sought on appeal remain denied, the Veteran should be furnished an appropriate Supplemental Statement of the Case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Smith, Associate Counsel