Citation Nr: 18146425 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 16-25 852 DATE: October 31, 2018 ORDER Entitlement to an initial rating of 40 percent, but no higher, for service-connected herniated disc, L5-S1 is granted for the entire period of appeal, subject to controlling regulations governing the payment of monetary awards. Entitlement to an initial disability rating of 20 percent, but no higher, for service-connected left ankle strain is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to an initial disability rating of 20 percent, but no higher, for service-connected right ankle strain is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to an initial rating in excess of 10 percent for service-connected bilateral hip strain is remanded. Entitlement to an initial rating in excess of 10 percent for service-connected bilateral patellofemoral syndrome is remanded. FINDINGS OF FACT 1. For the entire period on appeal, the evidence is at least evenly balanced as to whether the symptoms of the Veteran’s herniated disc, L5-S1 more nearly approximate forward flexion of the thoracolumbar spine to 30 degrees or less, but symptoms did not more nearly approximate unfavorable ankylosis of the thoracolumbar spine, or incapacitating episodes of disc disease having a total duration of at least six weeks during a 12-month period. 2. Symptoms of the Veteran’s bilateral ankle strain have more nearly approximated marked limitation of motion, but not ankylosis. 3. The Veteran’s service-connected disabilities preclude the ability to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for a rating of 40 percent, but no higher, for herniated disc L5-S1 have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.71a, Diagnostic Code 5299-5237 (2018). 2. The criteria for an evaluation of 20 percent, but no higher, for right ankle strain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.71a, DC 5299-5271 (2018). 3. The criteria for an evaluation of 20 percent, but no higher, for left ankle strain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.71a, DC 5299-5271. 4. The criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1-4.7, 4.16, 4.25 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from August 2004 to December 2004 and from January 2006 to January 2009. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The RO, inter alia, granted service connection for scoliosis, lumbar spine and assigned a 10 percent disability evaluation; bilateral hip strain and assigned a 10 percent disability evaluation; bilateral knee patellofemoral syndrome and assigned a 10 percent disability evaluation; and bilateral ankle strain and assigned a 10 percent disability rating for each ankle. Each rating was effective January 3, 2009. In a July 2011 rating decision, the RO denied entitlement to a TDIU and granted an increased rating of 20 percent for herniated disc, L5-S1 (previously rated as scoliosis, lumbar spine) with an effective date of October 15, 2010. This created a staged rating. The Veteran timely appealed the effective date of the assigned herniated disc, L5-S1 20 percent rating. Thus, the issue before the Board in this regard may be phrased in various manners. The issue may be phrased as entitlement to an earlier effective date for a 20 percent for herniated disc, L5-S1. The issue may also be phrased as entitlement to a 20 percent rating for herniated disc, L5-S1 prior to October 15, 2010. The Board notes that the grant of any compensation benefit necessarily includes implementation of an award and the selection of an effective date, since no award is granted in a legal vacuum. Here, the Board has phrased the issue as entitlement to a higher initial rating for service-connected herniated disc, L5-S1 prior to October 15, 2010, because, as noted, the RO has granted a staged rating and as the Veteran is presumed to be seeking the maximum possible evaluation, and the issue of higher ratings for the Veteran’s herniated disc, L5-S1 remains in appellate status for the entire period on appeal. See A.B. v. Brown, 6 Vet. App 35 (1993); See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (where a veteran timely appeals a rating initially assigned when service connection is granted, the Board must consider entitlement to “staged” ratings to compensate for times since filing the claims when the disabilities may have been more severe than at other times during the course of the appeal). In November 2016, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is of record. Increased Rating 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 rating 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. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (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). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). The Board notes that in Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that 38 C.F.R. § 4.59 creates range of motion testing requirements with which VA must comply. 38 C.F.R. § 4.59 provides, “The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint.” In the case of the Veteran’s spine and bilateral ankle disability, however, the Board is granting the highest rating possible under the applicable diagnostic codes based on limitation of motion, with higher ratings requiring ankylosis. For the reasons indicated in the discussion below, any error in not conducting Correia-complaint range of motion testing with regard to these joints is therefore harmless. 1. Entitlement to an initial rating of 40 percent for service-connected herniated disc, L5-S1 The Veteran’s service-connected herniated disc, L5-S1 is evaluated as 10 percent disabling prior to October 15, 2010 and 20 percent disabling thereafter under DC 5299-5237. The criteria for rating disabilities of the spine are listed under DCs 5235 to 5243. The code for intervertebral disc syndrome (DC 5243), permits rating under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher rating when all disabilities are combined. 38 C.F.R. § 4.71a. The Veteran does not have a diagnosis of Intervertebral Disc Syndrome. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphasia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See Note 5, General Rating Formula for Disease and Injuries of the Spine, 38 C.F.R. § 4.71a, Plate V (2016). Under the General Rating Formula for Diseases and Injuries of the Spine, the disability is evaluated with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. at Note (2). Any associated neurological abnormalities are evaluated separately under the appropriate diagnostic code. See Note 1, General Rating Formula for Disease and Injuries of the Spine, 38 C.F.R. § 4.71a. A November 2009 VA examination report reflects that on examination, there was no evidence of radiating pain on movement. The examiner noted that muscle spasms were present; however, the muscle spasms did not produce an abnormal gait. There was no tenderness and no guarding of movement. The examination did not reveal any weakness, muscle tone was normal, and musculature was normal. There was negative straight leg raising bilaterally. There was no atrophy of the limbs and no ankylosis of the thoracolumbar spine. Range of motion testing revealed flexion to 75 degrees and extension to 25 degrees. The examiner reported that joint function of the spine was additionally limited by pain which had major functional impact after repetitive use. A January 2011 magnetic resonance imaging (MRI) of the lumbar spine revealed posterior left paracentral disc protrusion indenting the thecal sac and impinging on the left S1 nerve root and in the left lateral recess. There was moderate narrowing of the left neural foramen as well and the right neural foramen is patent with no spinal canal stenosis seen. The Veteran had a herniated disc L5-S1 which the examiner described as “moderate.” A January 2011 VA examination report reflects that the Veteran reported that when he bended over or lifted anything over 15 to 20 pounds, he would have increased back pain. He reported that back pain would wake him up at night and his back would “pop.” He reported that he did not have any incapacitating events. He reported that any position he was in for very long would aggravate the back pain for 30 to 45 minutes. He reported moderate flare-ups with increasing activity. On examination, range of motion testing revealed flexion to 40 degrees on both active and passive testing against resistance. The examiner reported that there was pain at the endpoint but no increased pain, fatigue, weakness, or incoordination with repetitive motion. Extension was to 30 degrees and all motion was active, passive and against resistance. There was no pain, fatigue, weakness or incoordination with repetitive motion. In a January 2011 statement from the Veteran’s friend, he reported that he had been friends with the Veteran for 10 years and has known the Veteran to have been suffering severe back problems. He reported that the Veteran had trouble with tasks such as driving, cooking, running, and walking. During the November 2016 Board hearing, the Veteran testified that he has had severe pain in his back and sometimes he fell down because of the pain. He reported that he had flare-ups. He testified that when he stood up, after roughly 20 to 30 minutes before his back will cramp up and he would experience sharp pains. He reported that during his flare-ups, he could move his back about 20 to 30 percent. He reported flare-ups occurred when he did physical labor. He reported his back disability limited his function and flare-ups prevented him from moving at all. VA treatment notes and private medical treatment notes reflect continued treatment for the Veteran’s lumbar spine disability symptoms. Upon review of the evidence of record, the Board finds that the Veteran’s lumbar spine disability symptoms more nearly approximate the criteria required for a 40 percent disability rating, but no higher, under the General Rating Formula for Diseases and Injuries of the Spine, DC 5299-5237. The evidence reflects back pain, limitation of motion, and weakened movement. Specifically, the November 2009 and January 2011 VA examinations and November 2016 Board testimony revealed flare-ups severe enough to impact his ability to walk, bend, and lift. Additionally, flare-ups were described as severe enough where he would require assistance with daily activities such as driving and cooking. Additionally, the Veteran reported functional loss and functional impairment to include pain, weakness, and limitation of motion of around 20 to 30 percent. In order to warrant a 40 percent rating under the general rating formula, symptoms must more nearly approximate flexion to 30 degrees or less. Here, while forward flexion ranged from 40 to 75 degrees on range of motion testing, there was consistent evidence of additional functional limitation due to pain and weakness during flare-ups throughout the appeal period. The Board therefore finds that throughout the appeal period there have been symptoms more nearly approximating the flexion to 30 degrees or less warranting an initial 40 percent rating under the general rating formula. In order to warrant an evaluation in excess of 40 percent for the Veteran’s lumbar spine disability, the evidence must show unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Here, VA treatment notes, private treatment records, and the VA examination reports do not indicate that there was unfavorable ankylosis of the entire thoracolumbar spine for the appeal period. There is no evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. The medical findings contain specific notations which indicated that there was no ankylosis. With respect to the provisions of 38 C.F.R. §§ 4.40 and 4.45, in Johnston v. Brown, 10 Vet. App. 80, 85 (1997), the Court determined that, if a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. § 4.40 and 4.45 are applicable. See Id. at 84-85 (although the Secretary suggested remand because of the Board’s failure to consider functional loss due to pain, remand was not appropriate because higher schedular rating required ankylosis). In the instant case, the Veteran is receiving the maximum rating allowable under the current General Rating Formula for Diseases and Injuries of the Spine, absent ankylosis. Accordingly, 38 C.F.R. §§ 4.40 and 4.45 are not for consideration. For the foregoing reasons, the evidence is at least evenly balanced as to whether symptoms of the Veteran’s herniated disc, L5-S1 more nearly approximated flexion limited to 30 degrees or less, but the preponderance of the evidence reflects that symptoms did not more nearly approximate ankylosis or incapacitating episodes. Resolving reasonable doubt in the Veteran’s favor, a rating of 40 percent, but no higher, is warranted for the Veteran’s lumbar spine disability for the entire period on appeal. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 2. Entitlement to an initial disability rating of higher than 10 percent for service connected right and left ankle strain The Veteran’s service-connected left ankle strain is evaluated as 10 percent disabling and his service-connected right ankle strain is evaluated as 10 percent disabling under DC 5299-5271. Under DC 5271, ankle disability with moderate limitation of motion warrants a ten percent rating. A 20 percent rating is assigned for marked limitation of motion. 38 C.F.R. § 4.71a, DC 5271. Standard range of ankle dorsiflexion is from zero to 20 degrees, and plantar flexion from zero to 45 degrees. See 38 C.F.R. § 4.71, Plate II. The terms “slight,” “moderate,” and “marked” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just,” and all evidence must be evaluated in deciding rating claims. 38 C.F.R. § 4.6. A November 2009 VA examination report reflects that the Veteran reported pain in both of his feet which occurred twice a day. The pain was localized and described as burning, aching, and cramping. On a scale from 1 to 10 (10 being the worst pain) the pain level was described as a “4.” The Veteran reported that the pain could be exacerbated by psychical activity. He reported at the time of pain, he could function with medication. He also reported that at rest, he did not have any pain, weakness, stiffness, swelling, or fatigue. While standing or walking, he reported pain, stiffness, and fatigue. While standing or walking he reported that he did not have weakness and swelling. He reported the overall functional impairment was difficulty with weight-bearing activities. On examination of the right ankle, there was no edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation or guarding of movement. On examination of the left ankle, there was no signs of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation or guarding of movement. There was no deformity and ankylosis of bilateral ankles. Range of motion testing revealed dorsiflexion to 15 and plantar flexion to 45 of the right ankle and dorsiflexion to 15 and plantar flexion to 45 of the left ankle. On the right, the joint function was additionally limited by pain which caused major functional impact. The joint function on the right was not additionally limited by the following after repetitive use: fatigue, weakness, lack of endurance and incoordination. On the left, the joint function was additionally limited by pain which caused major functional impact. The joint function on the left was not additionally limited by the following after repetitive use: fatigue, weakness, lack of endurance, and incoordination. Radiology testing from January 2011 reflect that bilateral ankle morti were intact and there was no evidence of fracture or dislocation. There was no radiographic abnormality seen in either ankle. A January 2011 VA examination report reflects that the Veteran described a tight feeling in the ankles with running and walking more than a couple of blocks. He did not report flare-ups or incapacitating events, he had no surgery or hospitalization, he described no limitations in activities of daily living, he did not use braces/other aids, and had no history of inflammatory arthritis or neoplasms. On examination of both ankles, there was no obvious deformity, there was no soft tissue swelling or joint effusion, both ankles were stable to inversion eversion, there was a negative drawer test, motor function was 5/5 in all muscle groups, and he had a normal gait. During the November 2016 Board hearing, the Veteran testified that his ankles felt like they were sprained all the time. He reported that he had to walk gently and he reported mild spasms. He reported that his ankles felt “wobbly” at times and he would fall. He reported that he experienced flare-ups in his ankles when he did physical labor. VA and private medical treatment records reflect continued complaint of limitation of motion in the Veteran’s bilateral ankles. Upon review of the evidence of record, the Board finds that the Veteran’s bilateral ankle strain more nearly approximates marked limitation of motion. In the November 2009 VA examination report, the examiner reported that joint function was additionally limited by pain causing major functional impact bilaterally. Additionally, during the November 2016 Board hearing, the Veteran testified that he had spasms and flare-ups. Thus, the Board finds that the overall disability picture of the Veteran’s bilateral ankle strain more nearly approximated marked limitation of motion warranting a 20 percent rating for each ankle. The Board has considered whether an initial rating under DC 5270 is warranted. However, neither the Veteran’s lay statements or the medical evidence of record indicate that the Veteran suffers ankylosis or analogous symptoms. The November 2009 and January 2011 VA examination reports specifically note that the Veteran did not have ankylosis or any deformity in his ankles. Additionally, there was no evidence of muscle atrophy and dislocation. Thus, the evidence does not reflect ankylosis or other symptoms warranting an initial rating in excess of 20 percent under any potentially applicable diagnostic code. For the foregoing reasons, the Board finds that separate initial ratings of 20 percent, but no higher, for a right ankle strain and a left ankle strain is warranted. As the preponderance of the evidence is against a rating higher than 20 percent for either ankle, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. 3. Entitlement to a total disability rating (TDIU) Under 38 C.F.R. § 4.16 (a), a TDIU rating may be assigned in cases in which the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that either the veteran’s single service-connected disability is ratable at 60 percent or more; or, if the veteran has two or more service-connected disabilities, one of the disabilities is ratable at 40 percent or more and the others bring the combined rating to 70 percent or more. Disabilities resulting from a common etiology will be considered as one disability for TDIU purposes. 38 C.F.R. § 4.16 (a)(2). The Veteran is service-connected for herniated disc, L5-S1, rated now as 40 percent disabling; patellofemoral syndrome, left knee as 10 percent disabling; patellofemoral syndrome, right knee as 10 percent disabling; left hip strain as 10 percent disabling; right hip strain as 10 percent disabling; right ankle strain now as 20 percent disabling; left ankle strain now as 20 percent disabling; scar pain, right hand as 10 percent disabling; deviated septum, status post nasal fracture as non compensable; scar under right eye as noncompensable; and scar, right hand as noncompensable. The Veteran thus has a combined rating higher than 70 percent throughout the appeal period and meets the minimum schedular requirements for TDIU on a schedular basis. 38 C.F.R. § 4.16(a). In the November 2009 VA examination report, the examiner reported that the effect of the Veteran’s conditions on his usual occupation is decreased weight-bearing and lifting ability due to his musculoskeletal issues. In the November 2010 Veteran’s Application for Increased Compensation Based on Unemployability, the Veteran indicated that he was last employed in January 2009. He reported that his back, bilateral ankle, bilateral knee, and bilateral hip conditions prevented him from securing or following substantially gainful occupation. His prior employment included security work and work as a laborer. Additionally, the Veteran indicated that he had two years of college education. Social Security Administration (SSA) records reflect that the Veteran reported constant pain in his lower back, hips, knees, and ankles that physically limit his abilities. During his November 2016 Board hearing, the Veteran testified that his he attempted to find a job following separation and attended college for a while. However, he reported that since he entered service at the age of 17, he did not have that much work experience. He reported that he would be unable to be employed in sedentary work due to the total combined effects of his disabilities. Upon review of the evidence of record, the Board finds that a TDIU is warranted. The Veteran’s record indicates that he has some college education. The Veteran reported that he is unable to sustain gainful employment due to his physical limitations. These statements are competent and credible and the Board notes that whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert”). Furthermore, the record contains a November 2009 opinion regarding the Veteran’s service-connected disabilities negatively impacting his ability to work. Although the Veteran has a level of education that would enable him to perform sedentary work, the Veteran has reported, and the examination reports reflect, that sedentary work would be difficult. Furthermore, the Veteran’s occupational history reflects experience only in work that would require physical labor. The Veteran could not perform significant physical labor as he uses a cane and has difficulty standing, walking, sitting, and lifting weight. Based on the medical examinations and opinion, the Veteran’s statements, and his educational and occupational history, the Board finds that the Veteran is unemployable due to his service-connected disabilities. Therefore, entitlement to a TDIU is warranted. 38 C.F.R. § 4.16 (a). REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for service-connected bilateral hip strain and bilateral patellofemoral syndrome is remanded. The Veteran contends that his bilateral knee disability has worsened; he can barely walk due to pain, he experienced instability, and a 10 percent evaluation does not fully compensate him for the pain and difficulties that he has on a daily basis because of his knees. Additionally, he contends that his bilateral hip disability has worsened. Disabilities evaluated on the basis of limitation of motion require VA to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2017), pertaining to functional impairment. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare-ups. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. Mitchell v. Shinseki, 25 Vet. App. 32, 43-4 (2011). Moreover, the Court has held that the joints involved should be tested for pain on both active and passive motion, in weight bearing and non-weight bearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). In this case, in November 2009 and January 2011, the Veteran received examinations of his hips and knees for VA purposes. In both examinations, the examiner found that the Veteran exhibited painful range of motion of the right and left hip, and functional impairment and joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. Similarly, in both examinations, the examiner found that the Veteran exhibited painful range of motion of the right and left knee, and functional impairment and joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. However, the examiner did not indicate whether the Veteran’s right and left knees were tested for pain during weight-bearing, non-weight-bearing, passive, and active motion. Additionally, the examiner did not provide an opinion as to whether pain, weakness, fatigability, or incoordination significantly limit functional ability with flare-ups. Consequently, the Board could not discern from the examination report whether the requirements of 38 C.F.R. § 4.59 (2017) and Correia were met, Moreover, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court addressed this specific issue, finding an orthopedic examination inadequate where the examiner declined to provide an estimate of the degree of additional loss of motion due to flare-ups because such would require resort to speculation. Id. at 29, 36. Significantly, the Court cited VA Clinician’s Guide, which instructs orthopedic examiners to examiners are instructed to inquire whether there are periods of flare and, if the answer is yes, to state their severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, “per [the] veteran,” to what extent, if any, they affect functional impairment. Sharp, 29 Vet. App. at 32 (citing VA Clinician’s Guide, chapter 11). Given the Court’s recent reiteration of the requirement that VA examiners estimate the degree of additional loss of motion due to flare-ups, or provide a reason for an inability to do so other than saying that it cannot be done without resort to speculation, a remand is necessary to decide the claim. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to evaluate the current severity of his service-connected bilateral hip disability. All indicated tests and studies shall be conducted. The claims folder must be made available to the examiner for review prior to examination. 2. Schedule the Veteran for a VA examination to evaluate the current severity of his service-connected bilateral knee disability. All indicated tests and studies shall be conducted. The claims folder must be made available to the examiner for review prior to examination. The examinations of both bilateral hip and bilateral knees should be conducted 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 non-weight bearing, consistent with 38 C.F.R. § 4.59 as interpreted by Correia. The examiner must elicit information about the severity, frequency, duration, precipitating and alleviating factors and extent of functional impairment of flare-ups from the Veteran in accordance with the VA Clinician’s Guide, Ch. 11, as explained in Sharp v. Shulkin, 29 Vet. App. 26 (2017). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Laroche, Associate Counsel