Citation Nr: 18151154 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 12-31 852 DATE: November 16, 2018 REMANDED Entitlement to an initial rating greater than 10 percent for a left knee disability is remanded. Entitlement to an initial rating greater than 10 percent for a lumbar disability is remanded. Entitlement an initial rating greater than 20 percent for a right shoulder disability is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1989 to December 2010. This appeal to the Board of Veterans’ Appeals (Board) is from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2015, a Travel Board hearing was held before the undersigned; a transcript of the hearing is of record. The Board remanded the issues in April and November 2015, and in a May 2017 decision denied higher ratings for the right shoulder and lumbar spine disabilities, but granted an initial 10 percent rating for the left knee. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). In May 2018, the parties filed a Joint Motion for partial remand (JMPR) and by way of a May 2018 Order the Court vacated that portion of the Board decision that was the subject of the JMPR, and remanded the matters for action consistent with the JMPR. 1. Entitlement to an initial rating greater than 10 percent for a left knee disability is remanded. 2. Entitlement to an initial rating greater than 10 percent for a lumbar disability is remanded. 3. Entitlement to an initial rating greater than 20 percent for a right shoulder disability is remanded. With regard to the left knee, the JMPR found that the Board had relied on inadequate VA examinations from March 2015 and May 2016, since these examinations were not compliant with Sharp v. Shulkin, 29 Vet. App. 26 (2017). Consequently, another examination is needed. The JMPR also found that the Veteran reported having significant sleep impairment due to his lumbar, left knee, and right shoulder disabilities, and that the Board did not adequately address why the issue should not be remanded for extraschedular consideration based on his sleep complaints. Since the Veteran is also service connected for sleep apnea, which causes sleep impairment, an examination is needed to determine the degree of sleep impairment from his orthopedic disabilities versus his sleep apnea and whether they can be differentiated. The matters are REMANDED for the following action: 1. Obtain and associate with the record VA treatment records since June 2017. 2. After completing the above development action, schedule the Veteran for a VA examination to determine the severity of his service-connected left knee, right shoulder, and lumbar disabilities. The claims file must be made available to the clinician to review. A complete history should be elicited from the Veteran, to specifically include the frequency, severity, and degree to which these disabilities impair his sleep. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The following should be included in the report for the left knee, right shoulder, and lumbar disabilities: a) Range of motion testing should be undertaken, to include after repetitive use. The examiner is to report the range of motion measurements in degrees. The examiner should consider whether there is likely to be additional range of motion loss due to any of the following: (1) during flare-ups; (2) after repetitive use over time; (3) in weight bearing and non-weight bearing; and (4) as a result of pain, weakness, fatigability, or incoordination. b) The examiner should offer opinions with respect to the additional limitation of motion during flare-ups or after repeated use over time based on estimates derived from information procured from relevant sources, including the Veteran’s lay statements. It is insufficient to conclude that the requested opinion cannot be rendered without resorting to speculation based solely on the fact that the VA examinations were not performed during a flare-up or after repeated use over time. c) The examiner should also address whether there is a difference in active range of motion versus passive range of motion. If so, the examiner is asked to describe the additional loss, in degrees, if possible. In any event, the examiner should fully describe the any associated functional limitations. d) The examiner must, at a minimum, ask the Veteran to describe the severity, frequency, duration, and functional loss manifestations related to flare-ups and repeated use over time, to include whether there have been any changes since the last examination. e) If the examiner is unable to render the requested opinions without resorting to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. f) To the extent possible and based on a review of the record and the Veteran’s statements, distinguish the degree and impact of sleep impairment associated with the orthopedic disabilities (i.e., left knee, right shoulder, and lumbar) from his service-connected sleep apnea. A complete explanation is needed. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Bredehorst