Citation Nr: 18146467 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 14-09 707 DATE: October 31, 2018 ORDER Entitlement to an increased rating of 70 percent, but not higher, for depressive disorder not otherwise specified (NOS), is granted for the entire appeal period, subject to the laws and regulations controlling the award of monetary benefits. Entitlement to a total disability rating due to individual unemployability (TDIU) is granted subject to the laws and regulations controlling the award of monetary benefits. REMANDED Entitlement to an increased rating for status post left patellar lateral release and medial reefing with distal patellar realignment (left knee disability) currently rated as 10 percent disabling prior to June 13, 2014 and from September 1, 2014 is remanded. FINDINGS OF FACT 1. The Veteran’s depressive disorder NOS symptoms and overall impairment have, throughout the appeal period, more closely approximate occupational and social impairment with deficiencies in most areas, but they do not more closely approximate total occupational and social impairment at any time during the appeal period. 2. The evidence is at least evenly balanced as to whether the Veteran’s service-connected disabilities preclude him from securing and following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an increased rating of 70 percent, but not higher, for depressive disorder NOS are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.130, Diagnostic Code (DC) 9433. 2. Resolving reasonable doubt in favor of the Veteran, the criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1993 to December 1999. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida which continued the evaluations for service connected depressive disorder as 30 percent disabling, and left knee disability as 10 percent disabling. In May 2011, the Veteran filed his notice of disagreement with the current assigned ratings, was issued a statement of the case in February 2014, and in March 2014 perfected his appeal to the Board. In an August 2014 rating decision, the RO assigned a temporary 100 percent rating for the Veteran’s left knee disability due to surgery effective June 13, 2014 and assigned an evaluation of 10 percent for the left knee disability from September 1, 2014. In September 2015, the Board remanded the claims for further development, specifically to obtain VA examinations to determine the severity of the Veteran’s left knee disability and depression. The Board again remanded the claims in May 2016 for additional records regarding the left knee disability claim and for an addendum opinion regarding the depression claim. In a March 2018 rating decision, the RO granted a rating increase for depression, evaluating it as 50 percent disabling effective December 20, 2017. As this constitutes a partial grant of the benefits sought on appeal, this issue remains on appeal before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2008). When VA grants a claim for an increased rating, it may assign an effective date up to one year before the date the claimant’s application for increase was received, provided it is factually ascertainable that an increase in disability occurred within that timeframe. 38 U.S.C. § 5110 (b)(2); Hart, 21 Vet. App. 505, 509 (2007). Here, the relevant evidentiary window begins one year before the Veteran filed his claim (July 2010) for an increased rating, and continues to the present time. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are 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. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). 1. Depressive disorder The Veteran contends that his depressive disorder has worsened and warrants a disability rating greater than the 50 percent rating currently assigned. The criteria for rating depressive disorder are found at 38 C.F.R. § 4.130, DC 9433 under the General Rating Formula for Mental Disorders. Under this formula, a 50 percent evaluation is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands, impairment of short and long-term memory; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficultly in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent evaluation is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. Symptoms listed in the VA’s general rating formula for mental disorders serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. See Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has emphasized that the list of symptoms under a given rating is a nonexhaustive list, as indicated by the words “such as” that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). In Vazquez-Claudio, the Federal Circuit held “that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration.” Id. at 117. Other language in the decision indicates that the phrase “others of similar severity, frequency, and duration,” can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Id. at 116. The nomenclature employed in the rating formula is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-V). See 38 C.F.R. § 4.130. Per applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission must be considered. See 38 C.F.R. § 4.126 (a). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment, not solely on the examiner’s assessment of the level of disability at the moment of the examination. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely based on social impairment. See 38 C.F.R. § 4.126 (b). An October 2010 VA examination report noted varying intensity of depression and anxiety which was chronic most days, mood shifts, no highs, angry outbursts, and concentration and memory issues due to racing thoughts. The Veteran reported sleep onset issues, lack of motivation and low drive, and while he denied suicidal or homicidal ideation, he acknowledged one suicide attempt in December 2009. He reported playing golf with friends and attending family events. The examiner noted the Veteran’s speech was clear and coherent, he was clean and appropriately dressed, oriented to person, time, and place, and reported no delusions. The examination report noted no hallucinations or inappropriate behavior. The Veteran did not display obsessive or ritualistic behavior, or suffer panic attacks. His memory was normal and he was able to manage his own financial affairs. The Veteran reported using 90 hours of sick leave for doctor appointments in the last 12-month period. A November 2010 psychiatry note indicated that the Veteran had no suicidal or homicidal ideation, no delusions, was oriented to person, place and time, attention and concentration were intact, and his insight and judgment were good. A May 2011 private treatment report indicated the Veteran displayed significant depressive symptoms including anhedonia, restlessness, irritability, muscle tension, and sleep disturbances. There was evidence of impulse control and angry outbursts which were likely to substantially negatively impact his employability. A December 2014 neuropsychology treatment note indicated the Veteran acknowledged feelings of depression, anxiety, and stress that began in the mid to late 1990s. He stated he tends to “get set off quite a bit” and that he has always been “short-fused”. A November 2015 VA examination report noted a diagnosis for depressive disorder which caused occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or: symptoms controlled by medication. The Veteran reported that he has been married twice, both ending in divorce, and stated he has a few friends but rarely goes out to socialize due to low finances and a busy work schedule. He denied any anhedonia or lack of interest in his hobbies or pleasurable activities. He stated he has had issues with his current project manager, but denied any other occupational impairment caused by mental health symptoms. The Veteran denied suicidal and homicidal ideation, hallucinations and perceptual disturbances. The examination report noted decreased attention and concentration, but his memory and thought process were normal. The Veteran was oriented to person, place, situation and date, and his judgment and insight were good. The examination report noted the Veteran’s depressive disorder symptoms included depressed mood, anxiety, and chronic sleep impairment. The Veteran described feelings of isolation, depressed mood, low energy, passive suicidal ideation, forgetfulness, change in appetite, tearfulness, feelings of helplessness, hopelessness, and worthlessness. He stated the frequency of these symptoms were 3 days out of the past month lasting all day, 3 days in a row, and mild in severity. He also stated he experienced feeling “keyed up or on edge”, irritable, with excessive worry and sleep disturbance. The Veteran did note that these symptoms associated with anxiety have not been present for the past 2 to 3 months. He also described panic attacks occurring 1 or 2 times a month lasting half a day with symptoms including sweating, shortness of breath, heart racing, and worrying. A December 2017 VA examination report noted a diagnosis for unspecified depressive disorder with anxious distress and panic attacks. The examiner noted the Veteran’s level of impairment due to his depressive disorder to be occupational and social impairment with reduced reliability and productivity. The Veteran reported having a good relationship with his children and having 1 or 2 friends with whom he does not socialize. He did indicate that he is able to get along with others and verified that he has not lost interest in enjoyable activities, but cannot participate due to financial or physical limitations. He is employed through a temporary employment agency and has been on a job for 7 months and denied inappropriate behavior or difficulty performing his duties. The Veteran’s depressive disorder symptomatology included depressed mood, anxiety, panic attacks that occur weekly or less often, mild memory loss, and difficulty in establishing and maintaining effective work and social relationships. He denied suicidal and homicidal ideation, his thought process was goal directed, coherent and logical, and his judgment and insight/awareness were intact. He did report suicidal ideation 2 times in the last month. The Veteran denied impaired impulse control and did not endorse mania, psychosis, obsessions, compulsions, or panic attacks. He reported no problems with activities of daily living. The evidence is at least evenly balanced as to whether the Veteran’s disability picture more nearly approximates the criteria for a 70 percent rating for the entire period on appeal. The Veteran has stated that he attempted suicide in December 2009, and in his December 2017 VA examination report, he reported suicidal ideation 2 times in the last month. The presence of suicidal ideation alone (a Veteran’s thoughts of his or her own death) may cause occupational and social impairment with deficiencies in most areas. See Bankhead v. Shulkin, 29 Vet. App. at 20. The October 2010 VA examination report and May 2011 private treatment report also indicated the Veteran displayed evidence of lack of impulse control and angry outbursts which in conjunction with the evidence of suicidal ideation more nearly approximates symptomatology contemplated by a 70 percent rating. While the RO granted a ratings increase evaluating the Veteran’s depressive disorder NOS as 50 percent disabling from December 20, 2017, there is no evidence of record indicating that the Veteran’s depressive disorder NOS symptomatology suddenly worsened on that date. To the contrary, the evidence, including the Veteran’s acknowledged suicide attempt in December 2009, indicates that the Veteran’s depressive disorder NOS symptomatology more nearly approximated that contemplated by a 70 percent rating for the entire period on appeal beginning July 13, 2010, the date of the claim for an increased rating. A higher rating of 100 percent is not, however, warranted, as the Veteran did not have symptoms or overall impairment more nearly approximating the criteria for a 100 percent rating. The evidence of record does not indicate that the Veteran displayed gross impairment in thought process or communication, grossly inappropriate behavior, and during the appeal period was not in persistent danger of hurting himself or others. He additionally was not shown to have an inability to perform activities of daily living, to be disoriented to time or place, or to have memory loss for names of close relatives, his own occupation, or his own name. Based on the symptoms that the Veteran did have, the December 2017 VA examiner concluded that the Veteran’s depressive disorder NOS caused occupational and social impairment with reduced reliability and productivity. While the examiner’s characterization is not binding on the Board, here it is consistent with the other evidence of record. 38 C.F.R. § 4.2 (“It is the responsibility of the rating specialist to interpret reports of examination... so that the current rating may accurately reflect the elements of disability present.”); VA Adjudication Procedures Manual, M21-1, Part III, Subpart. iv, Chapter 3, Section A.7.i (updated Oct. 28, 2015) (“Do not request a medical authority to make conclusions of law, which is a responsibility inherent to the rating activity”). The Veteran has also provided evidence that he is able to maintain some social relationships as he has a couple of friends and maintains a good relationship with his children. Overall, his impairment, while significant, is not total in degree. The duration, frequency and severity of the Veteran’s depressive disorder symptoms do not meet or approximate the criteria for a 100 percent rating. In sum, the evidence is at least evenly balanced as to whether the Veteran’s symptoms of depressive disorder more closely approximate occupational and social impairment with deficiencies in most areas. Accordingly, entitlement to a rating increase of 70 percent, but no higher, for depressive disorder is warranted. As the preponderance of the evidence is against a higher rating, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. As to consideration of referral for an extraschedular rating, the Veteran has not contended, and the evidence does not reflect, that he has experienced symptoms outside of those contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (the Board is not obligated to analyze whether remand for referral for extraschedular consideration is warranted if “§ 3.321(b) (1) [is] neither specifically sought by [the claimant] nor reasonably raised by the facts found by the Board” (quoting Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff’d, 226 Fed. Appx. 1004 (Fed. Cir. 2007)). Therefore, referral for extraschedular consideration is not warranted. 2. TDIU A TDIU is warranted where the combined schedular evaluation for service-connected disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16 (a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment, by reason of his or her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16 (a), if there is only one such disability, it must be rated at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16 (a). The central inquiry is, “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. See Van Hoose, 4 Vet. App. at 363. “A high rating in itself is a recognition that the impairment makes it difficult to obtain or keep employment.” Id. The ultimate question, however, is “whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment.” Id. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). Marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. Marginal employment may also be held to exist, on a fact found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Id. In light of the decision herein, the Veteran is now service connected for depressive disorder NOS, evaluated as 70 percent disabling from July 13, 2010; arthritis of both knees, evaluated as 10 percent disabling from December 7, 1999; tinnitus, evaluated as 10 percent disabling from December 7, 1999; lumbosacral strain, evaluated as 10 percent disabling from December 11, 2013; left knee disability, evaluated as 10 percent disabling from September 1, 2014; residuals of fracture of the right thumb, evaluated as noncompensable from December 7, 1999; and hemorrhoids, evaluated as noncompensable from December 7, 1999. His total disability rating is 80 percent from September 1, 2014, however the Veteran meets the schedular rating criteria for TDIU under 38 C.F.R. § 4.16(a) from July 13, 2010 as he had at least 2 disabilities combined to at least 70 percent with one disability rated 40 percent or more disabling. The Veteran’s previous employer indicated on a VA 21-4192 form that the Veteran worked as a cable assembly and machine operator and resigned in August 2015. The October 2010 VA examiner opined that the Veteran’s left knee disability’s impact on his employment included decreased concentration, poor social interactions, decreased mobility, problems with lifting and carrying, lack of stamina, decreased strength, and lower extremity pain, while the May 2011 VA examiner noted that the Veteran’s left knee arthritis resulted in increased absenteeism from work. The May 2011 private physician stated that the Veteran’s service connected disabilities deemed him unemployable and totally and permanently disabled and the May 2011 private psychologist noted evidence of lack of impulse control which she stated were likely to substantially negatively impact the Veteran’s employability. The October 2015 VA examiner opined that the Veteran’s left knee disability impacted his ability to perform any type of occupational task. The above evidence of record reflects that the Veteran’s service connected disabilities have rendered him unemployable. The evidence indicates the Veteran’s disabilities would preclude him from being able to meet the physical demands necessary to perform his duties as a cable assembly and machine operator as he suffers from significant physical limitations due to his service connected disabilities. Additionally, the Veteran’s lack of impulse control due to his service connected depressive disorder would impact the Veteran’s ability to work with other people or interact well with fellow employees and supervisors. As the above evidence is at least evenly balanced as to whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities, entitlement to a TDIU is warranted. 38 C.F.R. § 4.16 (a). It appears that the Veteran stopped working due to his service connected disabilities on August 14, 2015. However, the Board will not specify the effective date of the TDIU to allow the RO to do so in the first instance. See Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curiam order) (“To the extent that [the appellant] is arguing that the Board must assign, sua sponte, an effective date once it awards a rating of TDIU on appeal from an RO decision, such an argument is unavailing unless an NOD is then of record as to the downstream issue of an effective date for the assignment of that rating.”) REASONS FOR REMAND Entitlement to an increased rating for left knee disability currently rated as 10 percent disabling The Veteran contends that his service-connected left knee disability which is currently rated as 10 percent disabling, has worsened since 2005. He states that he has difficulty walking, standing, and climbing despite current treatment. The Veteran was afforded a VA examination in October 2010. The examination report indicated that there were no constitutional symptoms of arthritis, no incapacitating episodes of arthritis, noted the Veteran could stand for 15 to 30 minutes, and was able to walk about ¼ mile. The Veteran was aided by intermittent, but frequent use of a brace. The Veteran’s gait was antalgic with poor propulsion. The examiner noted crepitus, tenderness, pain at rest, abnormal motion, and grinding. There was objective evidence of pain with active motion and left knee flexion was to 130 degrees while extension was to 0 degrees. After repetitive motion left knee flexion was to 120 degrees while extension was to 0 degrees. There was no evidence of joint ankylosis. The examination report noted the Veteran was employed as an aerospace tech and that he had lost approximately 2 weeks from work during the last 12-month period due to having to attend doctor appointments. The examination report noted that the Veteran’s left knee disability’s impact on his occupational activities included decreased concentration, poor social interactions, decreased mobility, problems with lifting and carrying, lack of stamina, decreased strength, and lower extremity pain. A May 2011 VA examination report indicated that the Veteran suffered from left knee pain which he described as a constant, sharp pain at a level of 5 to 6 out of 10. He stated the pain is increased with activities such as walking more than 15-20 minutes and climbing stairs. The examination report noted symptoms which included instability, pain, stiffness, weakness, decreased speed of joint motion, inflammation, “giving way”, and moderate weekly flare-ups with a duration of 1 to 2 days in the left knee. There was no inflammatory arthritis or evidence of abnormal weight bearing. Flexion was measured to 125 degrees and extension to 0 degrees with no additional limitations after three repetitions, and no joint ankylosis. The examiner diagnosed left knee arthritis which caused decreased mobility, lack of stamina, and pain, and resulted in increased absenteeism from work. A May 2011 private physician report indicated the Veteran suffered a significant increase in pain when walking, negotiating stairs, and transitioning from a seated to a standing position and indicated that there is a constant clicking, grinding and popping of the left knee when he walks. The Veteran stated there is swelling of the left knee which is constant in varying degrees and that the knee is unstable during ambulation and “gives out” at random. The report noted 90 degrees of flexion with pain, and side to side and front to back instability of the knee. The report noted grinding, popping and crepitus as the left knee moves through its available range of motion. The examiner noted lateral swelling and a positive patellar tap. The physician opined that the Veteran is deemed unemployable and totally and permanently disabled due to military related severe depressive disorder, orthopedic deficit of the left knee and hearing impairment. An October 2015 VA examination report noted the Veteran currently works as an amusement park ride electrical mechanic which requires a lot of climbing and squatting. The Veteran stated he cannot cross his legs for more than a few minutes and that he develops severe pain requiring him to walk it out to continue his work. He additionally stated that twisting or pivoting while working causes knee pain and makes it feel as if it will give out. The Veteran reported flare-ups of the left knee with bending, squatting and pivoting. Range of motion testing revealed flexion of the left knee to 120 degrees and extension to 0 degrees with no pain noted on examination. There was no pain on weight bearing, no evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, and no evidence of crepitus. There was no additional functional loss or range of motion after three repetitions, and the examiner noted that the examination was not conducted during a flare-up, thus he was unable to say whether pain, weakness, fatigability or incoordination significantly limit functional ability with flare-ups without speculation. The examination report noted laxity of patella, normal muscle strength, no muscle atrophy, and no ankylosis. The examiner noted a history of slight lateral instability in the left knee, recurrent effusion, but no joint instability. The examination report indicated the Veteran has had a left knee meniscal tear with frequent episodes of joint pain for which the Veteran underwent a meniscectomy which resulted in residual patellar laxity. Imaging studies revealed degenerative or traumatic arthritis of the left knee. The examiner opined that the Veteran’s left knee disability impacted his ability to perform any type of occupational task as he has difficulty with repetitive bending, lifting, squatting or prolonged standing due to pain and must take frequent breaks to alleviate the stress on his knee. The examiner noted the Veteran is able to sit in a chair comfortably and perform more sedentary work. Unfortunately, the evidence of record is insufficient to decide the claim. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court of Appeals for Veterans Claims 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 non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. While the record contains contemporaneous VA examinations regarding the Veteran’s left knee disability, the examinations do not comply with the requirements in Correia. The examinations do not contain both active and passive range of motion measurements, or pain on non-weight bearing testing. Additionally, a recent Court decision 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, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and 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. It 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. The Board notes that the examiners in this case did not attempt to estimate additional motion loss during flare-ups or explain why an estimate cannot be given. A remand is therefore warranted to provide the Veteran a new VA examination to determine the present level of disability, to include consideration of flare-ups as indicated in Sharp and to comply with the requirements of Correia. The matters are REMANDED for the following action: Schedule the Veteran for an examination to determine the current severity of his left knee disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. 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). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Maddox, Associate Counsel