Citation Nr: 18151860 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 15-08 819 DATE: November 20, 2018 REMANDED Entitlement to a rating higher than 10 percent for a ligamentous strain of the left knee, with limitation of flexion, is remanded. Entitlement to a rating, higher than 20 percent, for a ligamentous strain of the left knee, with degenerative joint disease and instability, is remanded. REASONS FOR REMAND In response to a request by the RO to confirm the Veteran’s participation in a scheduled Board hearing, the RO received an unsigned response form in June 2018 in which a box was checked indicating: “Withdraw my appeal. I am satisfied with my last decision.” The Veteran did not specify the issues to be withdrawn, although only the issues captioned above were on appeal. See 38 C.F.R. § 20.204 (b) (2017). The last decision in the file was a rating decision dated in June 2017, but the issues in this decision were not on appeal. Further, in November 2018, the Veteran’s representative submitted a brief to the Board addressing the issues above as if they remained on appeal and made no comment or reference to the June 2018 response form. Resolving all doubt in favor of the Veteran, the Board finds that the June 2018 form did not clearly withdraw the issues on appeal. As the Board is remanding the appeal, the Veteran will have another opportunity to consider withdrawal of the appeal if clearly desired. A VA examiner noted on the May 22, 2017 compensation and pension (C&P) examination that the Veteran reported experiencing flare-ups but referred only to the Veteran’s reports of difficulty kneeling, squatting, climbing stairs, standing more than 10 minutes, and walking more than a few hundred yards. The examiner was “[u]nable to say [without] mere speculation” whether pain, weakness, fatigability or incoordination significantly limit functional ability with flare-ups because: To make such a speculation/guess without sufficient objective evidence-based medical facts or direct observations is contrary to evidence based practice and outside my scope of professional comportment, and expertise. The Court discussed in Sharp v. Shulkin, 29 Vet. App. 26 (2017) a similar opinion and rationale and found it to be inadequate. In this regard, the Court stated that “[b]ecause the VA examiner did not . . . estimate the [V]eteran’s functional loss due to flares based on all the evidence of record-including the [V]eteran’s lay information-or explain why she could not do so, the . . . examination was inadequate.” It is understandable that an examiner would not want to speculate when trying to make objective findings. However, the May 2017 examiner did not attempt to address the Veteran’s lay statements or explain why the statements were inadequate or not credible. The Board accepts the examiner’s professional reluctance to speculate or guess; however, additional questions to the Veteran would have been appropriate to obtain the patient’s own reports of additional limitation of motion or instability or other limitations during flare-ups and assess the accuracy and credibility of these reports from a medical point of view considering the imaging studies and other clinical observations. As such, while on remand, the requested VA opinion must also contain adequate information pursuant to Sharp whether the information is objectively observed or addresses subjective lay statements. The matters are REMANDED for the following action: 1. Afford the Veteran the opportunity to identify or submit any additional relevant evidence and argument in support of his claims on appeal. Request that he identify any other relevant treatment that he has received or is receiving, and request that he forward any additional records to VA to associate with the claims file or provide VA with authorization to obtain such records. 2. Schedule the Veteran for an examination of the current severity of his left knee arthritis and instability. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups such as additional limitation of motion, instability, weakness, fatigue, or additional limitations in walking, standing, driving, or climbing stairs during flare-up episodes. To the extent possible, the examiner should identify any symptoms and functional impairments due to his left knee arthritis and instability alone and discuss the effect of the Veteran’s disability on any occupational functioning. 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 or the Veteran’s lay reporting (additional facts are required), or the examiner (does not have the knowledge or training). 3. Readjudicate the issue on appeal. If the benefit being sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case (SSOC) and afforded an opportunity to respond before the record is returned to the Board for further review. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Harner, Associate Counsel