Citation Nr: 18148599 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 14-16 221 DATE: November 7, 2018 REMANDED Entitlement to a disability rating in excess of 10 percent prior to January 12, 2017, and in excess of 20 percent thereafter, for right knee injury to medial collateral ligament status post-surgical reconstruction of the MCL and ACL with osteoarthritis, is remanded. Entitlement to a disability in excess of 10 percent for right knee instability, associated with right knee injury to medial collateral ligament status post-surgical reconstruction of the MCL and ACL with osteoarthritis, is remanded. Entitlement to a compensable rating for limitation of flexion, right knee, associated with right knee injury to medial collateral ligament status post-surgical reconstruction of the MCL and ACL with osteoarthritis, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to June 24, 2016, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1980 to February 1985. These matters come before the Board of Veterans’ Appeals (Board) on appeal from October 2012, November 2016, and March 2018 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in May 2017. A transcript of the hearing is of record. By way of history, the Veteran filed a claim for service connection for a right knee disability in February 2010. In a February 2011 rating decision, the RO granted service connection for a right knee injury to medial collateral ligament status post-surgical reconstruction of the MCL and ACL with osteoarthritis, and assigned a 10 percent disability evaluation effective August 14, 2009. That rating decision became final. In April 2012, the Veteran filed a claim for an increased rating for his right knee disability which was denied the following October 2012. The Veteran appealed the denial of an increased rating, giving rise to the present appeal. While the RO did grant separate noncompensable and 10 percent evaluations for right knee limitation of flexion and instability, respectively, that are also presently on appeal, as well as an increased 20 percent rating for the original right knee claim effective January 12, 2017, the Board denied any further separate or increased evaluation in September 2017. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2018 Join Motion for Partial Remand (JMPR), the Court vacated and remanded the Board’s September 2017 decision for a new VA medical examination and opinion. The Court found that the Board erred in relying on VA medical examinations that failed to meet the standards articulated by the Court in previous cases. When a disability of the joints is evaluated based on limitation of motion, the Board must consider functional loss due to flare-ups, pain, weakness or fatigue. DeLuca v. Brown, 8 Vet. App. 202, 205-06 (1995); see 38 C.F.R. §§ 4.40, 4.45. Under Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017), the examiner is required to “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 [the examiner] could not do so.” Here, a September 2012 examiner stated that the Veteran had flare-ups “with certain weather and with increased activity,” but did not estimate the functional loss from flares. February 2015 and November 2016 examiners stated that they could not opine as to the functional loss from flare-ups without mere speculation because the Veteran was not seen during a flare-up. A January 2017 examiner stated that she could not opine as to the functional loss from repetitive use over time because the Veteran was not seen after repetitive use over time. The Court noted in its decision in Sharp that “because of administrative constraints, examiners may not be examining veterans during flares,” but still held that “direct observation of functional impairment during a flare-up is not a prerequisite to offering an opinion.” 29 Vet. App. at 35. A VA 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.” Id. In Lyles v. Shulkin, 29 Vet. App. 107, 120 (2017), the Court similarly held that, like with flare-ups under Sharp, the fact that the examiner did not observe the veteran after repeated use over time does not obviate the need for the examiner to opine as to the functional effects of repetitive use over time. Additionally, some of the examiners, although they acknowledged the Veteran’s functional limitations, did not describe the functional limitations in terms of range of motion. See Mitchell v. Shinseki, 25 Vet. App 32, 44 (2011); DeLuca, 8 Vet. App. at 205-06. Thus, per the JMPR, the Veteran’s right knee disability claims must be remanded to obtain a new VA examination in which the examiner describes the Veteran’s functional limitations in terms of range of motion and opines, consistent with Sharp, on the extent in which pain could significantly limit the Veteran’s functional ability during a flare-up or as a result of repetitive use. The examiner must estimate Veteran’s functional loss due to flares based on all the evidence of record or explain why this is not feasible. Finally, the additional claim for entitlement to a TDIU was also before the Board in September 2017, where it was remanded to the Agency of Original Jurisdiction (AOJ) for additional development and was therefore not on appeal before the Court and not subject to the May 2018 JMPR. As the development ordered in the Board’s September 2017 remand has been completed by the AOJ, the TDIU claim has also been returned to the Board. However, since the Veteran’s TDIU claim is “inextricably intertwined” with his claims for increased ratings for right knee disabilities, it must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The Board notes that, subsequent to its September 2017 remand, the AOJ did grant the Veteran’s TDIU claim effective April 1, 2017. In addition, the Veteran was in receipt of a temporary total evaluation from June 24, 2016, to March 31, 2017. Thus, the matter of a TDIU from June 24, 2016, is moot. See Herlehy v. Principi, 15 Vet. App. 33 (2001). As the Veteran’s original increased rating claim for his service-connected right knee disabilities was originally filed in April 2012, his TDIU claim for the period prior to June 24, 2016, remains on appeal. The matters are therefore REMANDED for the following actions: 1. Ask the Veteran to identify all outstanding treatment records relevant to his claims. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, and to comply with the Court’s JMPR, schedule the Veteran for a VA knee examination to determine the symptoms, level of severity, and functional impairment associated with his service-connected right knee disabilities. The claims file should be reviewed by the examiner. All necessary tests should be performed and the results reported. (a.) The examiner should test ranges of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for the knee. 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. Any additional functional limitations due to pain, weakness, etc. should be fully explained. (b.) The examiner should elicit from the Veteran information about the frequency, duration, and limitations present during any flare-ups. Based on this information and a review of the file, the examiner should provide a range of motion estimate during flare-ups. If the estimate cannot be provided, the examiner must fully explain why not. The Court has held that stating an estimate cannot be provided simply because the Veteran is not being observed during flare-up will not suffice. (c.) The examiner should elicit from the Veteran information about the frequency, duration, and limitations present after repetitive use. Based on this information and a review of the file, the examiner should provide a range of motion estimate regarding the knee after repetitive use. If the estimate cannot be provided, the examiner must fully explain why not. The Court has held that stating an estimate cannot be provided simply because the Veteran is not being observed after repetitive use will not suffice. 3. After completing the above actions, and any other development deemed necessary, the AOJ should readjudicate the claims on appeal, to include the Veteran’s TDIU claim for the period prior to June 24, 2016. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Scarduzio, Associate Counsel