Citation Nr: 18148243 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 08-04 449 DATE: November 7, 2018 REMANDED 1. Entitlement to an initial rating in excess of 10 percent prior to August 25, 2011, and in excess of 40 percent thereafter for service-connected degenerative joint disease (DJD), lumbar spine is remanded. 2. Entitlement to an initial rating in excess of 10 percent for service-connected DJD, right knee, is remanded. 3. Entitlement to an initial rating in excess of 10 percent for service-connected DJD, left knee, is remanded. REASONS FOR REMAND The Veteran had active military service from October 1968 to July 1969. The Veteran and his spouse testified before the undersigned Veterans Law Judge at a May 2011 hearing conducted in Washington, DC. A transcript of the hearing is of record. This case was brought before the Board previously and most recently remanded in August 2017 for further development. The case is once again before the Board for appellate consideration of the issues on appeal. By an June 2018 rating decision of the Appeals Management Center (AMC), the Veteran was awarded 10 percent ratings, effective August 29, 2005, for DJD, right and left knee. As the ratings awarded by the AMC are less than the maximum available ratings, the issues remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). 1. Entitlement to an initial rating in excess of 10 percent prior to August 25, 2011, and in excess of 40 percent thereafter for service-connected DJD, lumbar spine, is remanded. 2. Entitlement to an initial rating in excess of 10 percent for service-connected DJD, right knee, is remanded. 3. Entitlement to an initial rating in excess of 10 percent for service-connected DJD, left knee, is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the issues of an increased disability rating for the Veteran’s lumbar spine and knee disabilities. Thus, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). While the record contains contemporaneous VA examinations regarding the Veteran’s lumbar spine and knee disabilities, the examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examinations, including the most recent October 2017 VA examinations, do not contain passive range of motion measurements as requested in the August 2017 Board remand. In addition, while the examiner found that pain noted on exam causes functional loss, ranges of motion at which pain begins and ends were not reported. The examiner also noted that he was unable to say whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over a period of time because there was no objective evidence. The examination report shows that no attempt at estimation of the additional functional loss was made, and no additional rationale is offered for this lack of estimation. Thus, the examiner did not adequately address any functional limitation of the Veteran’s lumbar spine and knee disabilities after repetitive use over time, and a remand is necessary in order to afford the Veteran a new VA examination to address the above deficiencies. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Court of Appeals for Veterans Claims (Court) held that VA examiners must estimate the functional loss that would occur during flare-ups and/or with repeated use over time. If the examiner determines that he or she cannot offer an opinion without resorting to speculation, it is only acceptable after determining it is not based on the absence of procurable information or on a particular examiner’s shortcomings or general aversion to offering an opinion on issues not directly observed. It must be clear that the examiner considered all procurable and assembled data before stating that an opinion cannot be reached and the examiner must explain the basis for his or her conclusion that a non-speculative opinion cannot be offered. The statement that an opinion cannot be provided without resort to speculation must be based on a lack of knowledge among the “medical community at large” and not the insufficient knowledge of the specific examiner. The matters are REMANDED for the following actions: 1. Obtain and associate with the Veteran’s claims file his VA treatment records maintained by the VA Medical Center (VAMC) in Washington, DC, dated from June 2018 to the present. 2. Then, the Veteran should be afforded a VA examination to determine the current symptoms and severity of his service-connected lumbar spine and knee disabilities. The Veteran’s claims file should be made available to the examiner prior to the examination, and the examiner is requested to review the entire claims file in conjunction with the examination. The examiner shall conduct all necessary testing as required to address the Veteran’s reported symptoms. The examiner should test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing, for both the joint in question and any paired 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. Complete range of motion studies must be provided with discussion as to any additional limitation of motion due to pain, weakness, fatigability, and incoordination or pain on movement of a joint, including use during flare-ups or repetitive use over time. If pain on motion is observed, the examiner should indicate the point at which pain begins. If it is not possible to provide information concerning whether there is additional limitation of motion during flare-ups or with repetitive use over time, without resorting to speculation, the examiner must explain why. Not being able to observe the Veteran during a flare-up or upon repetitive use over time is not an acceptable explanation. The examiner should also state whether the examination is taking place during a period of flare-up or after repeated use over time. 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. 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). K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Williams, Counsel