Citation Nr: 18154056 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 17-61 989 DATE: November 29, 2018 REMANDED Entitlement to a rating in excess of 20 percent for right knee chondromalacia is remanded. Entitlement to a rating in excess of 10 percent for left knee chondromalacia is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1985 to October 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in July 2016 by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to a rating in excess of 20 percent for right knee chondromalacia. 2. Entitlement to a rating in excess of 10 percent for left knee chondromalacia. The Veteran contends that her service-connected right and left knee disabilities are more severe than as reflected by the currently assigned ratings. In this regard, she alleges that such disabilities are manifested by limitation of motion, instability, and meniscal pathology. The Board finds that a remand is necessary in order to afford the Veteran a contemporaneous VA examination so as to determine the current nature and severity of her bilateral knee disabilities. In this regard, the Board observes that he was last examined by VA in June 2016. However, since such time, she has alleged increased and additional symptomatology in December 2016 and November 2017 statements. Furthermore, it does not appear that such examination was conducted in compliance with the holdings in Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Consequently, a remand is necessary in order to schedule the Veteran for an appropriate VA examination in order to assess the current nature and severity of such service-connected disabilities in accordance with pertinent legal authority. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Additionally, as the record reflects that the Veteran receives ongoing treatment for her bilateral knee disabilities, she should also be given an opportunity to identify any records relevant to the claims on appeal that have not been obtained. Thereafter, all identified records should be obtained. The matters are REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford her an opportunity to submit any copies in her possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e) 2. Afford the Veteran an appropriate VA examination to determine the current nature and severity of her service-connected bilateral knee disabilities. The record, including a complete copy of this remand, must be made available for review in connection with the examination, and all indicated tests and studies should be undertaken. If possible, such examination should be conducted during a flare-up. (A) The examiner should identify the current nature and severity of all manifestations of the Veteran’s right and left knee disabilities. (B) The examiner should record the range of motion of the right and left knees observed on clinical evaluation in terms of degrees for flexion and extension. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination, results in any loss of range of motion. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged 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. (C) The examiner is also requested to review the VA examinations containing range of motion findings pertinent to the Veteran’s right and left knee disabilities conducted in June 2016. In this regard, the examiner is requested to offer an opinion as to the range of motion findings for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to do so, he or she should explain why. (D) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use. In this regard, the examiner should indicate whether, and to what extent, the Veteran’s range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. (E) If the Veteran endorses experiencing flare-ups of her right and/or left knee, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. (F) The examiner should also comment as to whether (and if so, to what extent, (i.e., slight, moderate, or severe)) the Veteran’s right and/or left knee disability results in recurrent subluxation or lateral instability. The examiner should also indicate whether there is dislocated or removed semilunar cartilage and, if so, the nature of the symptoms associated with such meniscus impairment. (G) The examiner should also comment upon the functional impairment resulting from the Veteran’s right and left knee disabilities. A rationale for all opinions offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Smith-Jennings, Associate Counsel