Citation Nr: 18155860 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-56 487 DATE: December 6, 2018 REMANDED Entitlement to a rating in excess of 10 percent for a right knee disability is remanded. Entitlement to a rating in excess of 10 percent for a left knee disability is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from April 1995 to December 1998. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to a rating in excess of 10 percent for a right knee disability is remanded. 2. Entitlement to a rating in excess of 10 percent for a left knee disability is remanded. With respect to the Veteran’s increased rating claims for his right and left knee disabilities, the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). In this case, a review of the claims file reveals that the prior VA knee examinations do not fully comport with the requirements of Correia and therefore may be inadequate. Thus, at present, none of the medical evidence of record may fully satisfy the requirements of Correia and 38 C.F.R. § 4.59. Accordingly, new VA examinations are necessary. Additionally, when conducting evaluations for musculoskeletal disabilities, VA examiners must inquire whether there are periods of flare-ups and, if the answer is yes, to state their “severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, ‘per [the] veteran,’ to what extent, if any, they affect functional impairment.” See Sharp v. Shulkin, 29 Vet. App 26, 34 (2017). If an examination is not conducted during a flare-up, the “critical question” in assessing the adequacy of the examination is “whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares.” Id. at 16 (quoting Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011)). In this case, the examiner did not provide any response with regard to potential additional functional loss during the reported flare-ups of the Veteran’s bilateral knee disabilities, and instead stated that he could not provide an answer without mere speculation. The Board finds that further inquiry should reasonably have been attempted to determine the impact of these flare-ups. On remand, the examiner is required to ascertain adequate information regarding the Veteran’s flare-ups and “estimate the functional loss that would occur during flares” for each disability on appeal. Id. at 33. Additionally, the examiner stated in his report that the Veteran had an appointment at the Pittsburg VA Medical Center (VAMC) for his knees and that he was supposed to undergo arthroscopic surgery. The most recent VA treatment record is dated June 2016. Accordingly (and because VA treatment records are constructively of record), the complete records of all VA treatment pertaining to the Veteran’s right and left knee disabilities must be sought. The matters are REMANDED for the following action: 1. The AOJ should ask the Veteran to identify the providers of all evaluations or treatment he received for the disabilities on appeal and to provide authorizations for VA to obtain the complete records of any such private evaluations or treatment; the AOJ should then obtain such identified records. If any private records are not received pursuant to the AOJ’s request, the Veteran should be so notified and advised that ultimately it is his responsibility to ensure that private records are received. 2. The AOJ should obtain for the record complete clinical records of all VA evaluations and treatment the Veteran has received for the disabilities on appeal (i.e., update to the present all records of VA evaluations and treatment from all VAMCs), to include the records of any knee surgeries. 3. Schedule the Veteran for a VA examination to determine the current severity of his service-connected bilateral knee disabilities. The claims file must be made available to the examiner for review in connection with the examination. Any medically indicated tests should be conducted. Based on review of the record and interview and examination of the Veteran, the examiner should provide opinions that respond to the following: Please conduct and document range of motion studies that include active AND passive motion and weight-bearing AND non-weight-bearing motion. The examiner should note any further functional limitations due to pain, weakness, fatigue, incoordination, or any other such factors. If the VA 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 the basis for this decision. All findings should be reported in detail. Please also ask the Veteran to identify the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment resulting from flare-ups. The examiner is also asked to request the Veteran to identify the extent of his functional loss during flare-ups and, if possible, offer range of motion estimates based on the information. If the examiner is unable to provide an opinion on the impact of any flare-ups on the Veteran’s range of motion, he/she should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. In providing all of the requested opinions, the examiner should consider the Veteran’s competent lay statements regarding the observable symptoms he has experienced, including those associated with flare-ups. [CONTINUED ON NEXT PAGE] A detailed explanation (rationale) is requested for all opinions provided. By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Matta, Counsel