Citation Nr: 18146391 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 16-40 831 DATE: October 31, 2018 REMANDED Entitlement to an increased disability rating in excess of 10 percent for post-operative residuals of a left knee injury is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1985 to January 1988. This matter is on appeal from an August 2014 rating decision. Entitlement to an increased disability rating in excess of 10 percent for post-operative residuals of a left knee injury is remanded. A review of the claims file reveals that a remand is necessary before a decision on the merits of the claim can be reached. The August 2014 rating decision and September 2016 Supplemental Statement of the Case continued a 10 percent disability rating assigned to the Veteran’s service-connected post-operative residuals of a left knee injury. The decision to continue a 10 percent disability rating was based on VA examinations that were conducted in July 2014 and September 2016. At the July 2014 examination, the Veteran reported that he was having left knee pain on a daily basis but was able to work full time. On examination, he demonstrated left knee flexion to 140 degrees and extension from 140 to 10 degrees. The examiner reported that the Veteran exhibited no objective evidence of painful motion. However, the examination report failed to indicate that both active and passive and weight-bearing and nonweight-bearing testing with comparison to the opposite, undamaged joint was completed. At the September 2016 examination, the Veteran reported that he had chronic left knee pain and that the knee gets stiff and pops with motion. The examiner reported that the Veteran had three arthroscopic surgeries, most recently in 2005. The Veteran reported that he had flare ups, which he described as his knee getting stiff after sitting for a long period of time. The examiner reported that the Veteran has functional loss or functional impact as he is not able to squat. A review of range of motion testing shows flexion of 0 to 120 degrees and extension from 120 to 0 degrees. Pain on range of motion testing was noted but not reported to cause functional loss. The examiner also reported evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing with at least three repetitions, with no functional loss. The examiner reported that he was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limit functional ability with flare ups or repeated use over time. As rationale, the examiner explained that the examination was not conducted during a flare up or after repeated use over time. The Board finds the July 2014 and September 2016 VA examinations to be inadequate. The July 2014 examination is inadequate because it did not include adequate joint testing. Subsequent to the July 2014 examination, the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires VA examinations to include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158 (2016). Thus, the Court’s holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. Critically, this type of joint testing was not accomplished during the Veteran’s VA examination in July 2014. The September 2016 VA examination is inadequate for the following reasons. While the examiner indicated that the Veteran exhibited pain with flexion and extension of his knee, he did not specify the degree at which pain began as required under VA case law. See, e.g., DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Furthermore, the examiner did not opine on whether the Veteran experiences likely functional loss with repeated use over time or during flare ups. If the examination does not take place during a flare-up or after repeated use over time, the examiner should attempt to offer an estimate derived from information procured from relevant sources, including the Veteran’s lay statements. An examination that fails to attempt to ascertain adequate information from relevant sources regarding frequency, duration, characteristics, severity, or functional loss during flare-ups or repeated use over time will be considered inadequate. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). There is no indication that the examiner made any attempt to ascertain adequate information from relevant sources to provide the requested opinion. Thus, the September 2016 VA examination of the Veteran’s left knee disability was not adequate. In consideration of the inadequacies of the July 2014 and September 2016 VA examinations, the Board finds that remand is warranted for a new VA examination to ascertain the current severity and manifestations of the Veteran’s service-connected left knee disability. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from the VA examiner who conducted the September 2016 examination or another appropriate medical professional if the examiner is unavailable. If the reviewer determines that an additional examination of the Veteran is necessary to elicit information to provide a reliable opinion, such examination should be scheduled. The electronic claims file must be made accessible to, and be reviewed by, the examiner, and the report should note that review. To the best of their ability, the examiner should provide a retrospective medical opinion regarding whether pain, weakness, fatigability or incoordination significantly limit functional ability of the Veteran’s left knee with repeated use over time or during flare ups throughout the pendency of the appeal. 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). 2. Once the above-requested development has been completed, the claim must be readjudicated. If any determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim for benefits, and be given an opportunity to respond to the SSOC. The case must then be returned to the Board for further consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Moore, Associate Counsel