Citation Nr: 18147296 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 11-07 969 DATE: November 2, 2018 REMANDED Entitlement to an increased rating for post-traumatic left knee arthritis, rated as 10 percent disabling prior to March 5, 2018, with a 20 percent rating assigned for limited range of motion and a 20 percent rating assigned for moderate instability thereafter, is remanded. Entitlement to a higher initial rating for right knee degenerative arthritis, rated as 10 percent disabling prior to March 5, 2018, with a 10 percent rating continued for limited range of motion and a 20 percent rating assigned for moderate patellar subluxation thereafter, is remanded. REASONS FOR REMAND The issues on appeal were previously before the Board in October 2017, when they were remanded for further development. At that time, the Veteran’s service-connected left and right knee disabilities were rated solely on limitation of motion. In August 2018, the Agency of Original Jurisdiction (AOJ) issued a rating decision assigning a separate 20 percent rating for moderate instability of the left knee and a separate 20 percent rating for moderate patellar subluxation of the right knee, both effective May 5, 2018. The August 2018 rating decision also increased the rating assigned for limitation of motion of the left knee to 20 percent, effective May 5, 2018, but continued the 10 percent rating assigned for limitation of motion of the right knee. Although the August 2018 rating decision described the separate ratings assigned for instability and subluxation as newly service-connected disabilities, the record establishes the separate ratings were assigned for manifestations of the previously service-connected left and right knee disabilities. Thus, the effective dates of the separate ratings for instability and subluxation are included in the Veteran’s appeal of the ratings assigned for his service-connected left and right knee disabilities, as reflected in the issue statements in this order. 1. Entitlement to an increased rating for post-traumatic left knee arthritis, rated as 10 percent disabling prior to March 5, 2018, with a 20 percent rating assigned for limited range of motion and a 20 percent rating assigned for moderate instability thereafter, is remanded. 2. Entitlement to a higher initial rating for right knee degenerative arthritis, rated as 10 percent disabling prior to March 5, 2018, with a 10 percent rating continued for limited range of motion and a 20 percent rating assigned for moderate patellar subluxation thereafter, is remanded. In October 2017, the Board remanded the issues on appeal for an examination in compliance with Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court of Appeals for Veterans Claims held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must “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 [he or] she could not do so.” 29 Vet. App. at 35. The March 2018 VA examiner simply indicated that he could not provide an opinion regarding additional functional loss during flare-ups without resorting to speculation because the examination was not being conducted during a flare. There is no indication the March 2018 VA examiner considered the Veteran’s lay reports or the other evidence of record when attempting to address additional functional loss during flare-ups. Thus, the March 2018 is inadequate to the same extent as the Veteran’s prior examinations, even though it warranted separate ratings for additional manifestations of the Veteran’s service-connected left and right knee disabilities beyond limitation of motion. The matters are REMANDED for the following action: Schedule the Veteran for a new VA examination to assess the severity of his service-connected left and right knee disabilities. The selected examiner should conduct all indicated tests and studies, to include range of motion testing. The knees should be tested in both active and passive motion and in weight-bearing and nonweight-bearing. 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. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. The examiner is advised that the Court has found that inability to observe a flare up is an insufficient basis for declining to opine on its functional effects. Therefore, please attempt an estimate- the examiner is free to state the level of confidence he or she has in such estimate, on a scale of 1 to 5, with 1 being the least confident and 5 the most confident. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). ERIC S. LEBOFF Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. S. Kyle, Counsel