Citation Nr: 18152863 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 08-39 967 DATE: November 27, 2018 REMANDED Entitlement to a rating in excess of 10 percent disabling for degenerative joint disease of the right knee is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent disabling for degenerative joint disease of the right knee is remanded. The Veteran is seeking a rating in excess of 10 percent disabling for his service-connected degenerative joint disease of the right knee. For the reasons discussed below, the matter on appeal must be remanded to ensure that he is accorded full compliance with the statutory duty to assist. The Veteran was most recently afforded a VA examination in February 2017; however, the opinion provided by the examiner is inadequate. When VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the Board finds that a new VA medical examination and opinion is necessary to determine the current severity of the Veteran’s right knee degenerative joint disease. 38 C.F.R. § 3.159 (c)(4) (2017). As indicated in a May 2018 Amended Joint Motion for Partial Remand, the February 2017 examiner failed to indicate whether range-of-motion testing was conducted in weight-bearing positions in accordance with 38 C.F.R. § 4.59 and Correia v. McDonald, 28 Vet. App. 158, 168-170 (2016). Further, the examiner also failed to elicit information regarding the Veteran’s claims of functional loss with repetitive use over time and during flare-ups. The examiner merely stated that she could not state whether pain, weakness, fatigability, or incoordination significantly limited functional ability without speculation. Therefore, the examiner failed to comply with the criteria set out in Sharp v. Shulkin, 29 Vet. App. 26 (2017). Sharp requires that an examiner estimate a veteran’s’ functional loss due to flare-ups based upon the available relevant information, or state the reasons why an estimation cannot be given. See Id. Accordingly, remand is necessary to afford the Veteran an adequate VA examination. 2. Entitlement to a TDIU is remanded. Regarding the TDIU issue, a decision must be deferred until determinations are made regarding the Veteran’s increased rating claim. This issue is inextricably intertwined with entitlement to a TDIU. Harris v. Derwinski, 1 Vet. App. 180 (1991). The AOJ should also obtain any relevant, outstanding VA treatment records and provide the Veteran the opportunity to submit or identify any relevant, outstanding private treatment records. The AOJ should obtain any such records for which proper approval has been given. The matters are REMANDED for the following action: 1. The AOJ should also obtain any relevant, outstanding VA treatment records and provide the Veteran the opportunity to submit or identify any relevant, outstanding private treatment records. The AOJ should obtain any such records for which proper approval has been given. 2. Schedule the Veteran for an examination with an appropriate examiner to determine the current severity of his degenerative joint disease of the right knee. The claims file, to include a copy of this remand, must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note that such review was completed in the examination report. a) In compliance with the Court in Correia, the examiner must test for pain and record the range of motion for the right knee in active motion, passive motion, weight-bearing, and nonweight-bearing conditions and, if possible, with the range of motion for the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, or is not medically appropriate, then the examiner should provide a clear explanation as to why the testing was not conducted. b) The examiner must also express an opinion as to whether there would be additional functional impairment on repeated use over time or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range-of-motion loss, if possible. If the Veteran indicates that he is not currently experiencing a flare-up at the time of the examination, the examiner should still estimate any additional functional loss during flare-ups or on repeated use, based on the Veteran’s description of his flares’ severity, frequency, duration, and/or functional loss manifestations. If it is not feasible to determine the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why this is so. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Ferguson, Associate Counsel