Citation Nr: 18157865 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 13-13 876 DATE: December 13, 2018 REMANDED The claim of entitlement to an initial disability rating in excess of 10 percent for service-connected right knee patellofemoral syndrome is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from October 2003 to May 2011. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to an initial disability rating in excess of 10 percent for service-connected right knee patellofemoral syndrome Although the Board sincerely regrets the additional delay, remand is necessary for an adequate examination prior to the adjudication of this appeal. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2018), pertaining to functional impairment. In applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare ups. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner must also determine the point, if any, at which such factors cause functional impairment. Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.59 (2018). A VA examination report is not adequate without an explanation for an examiner’s failure to evaluate the functional effects of a flare-up. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board may accept a VA examiner’s statement that he or she cannot offer an opinion in that regard without resorting to speculation, but only after determining that this is not based on the absence of procurable information or on a particular examiner’s shortcomings or general aversion to offering an opinion on issues not directly observed. Although not binding on VA examiners, the VA Clinician’s Guide instructs examiners when evaluating certain musculoskeletal conditions to obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves. Sharp, 29 Vet. App. at 34-35, citing VA CLINICIAN’S GUIDE, ch. 11. For example, a VA examination report is not adequate when the VA examiner failed to elicit relevant information as to the veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran’s functional loss due to flares based on all the evidence of record- including the veteran’s lay information-or explain why she or he could not do so. Sharp, 29 Vet. App. at 34-35. Pursuant to the Board’s most recent remand in January 2018, VA provided an examination in June 2018. The examiner provided range of motion testing for the right knee and noted pain that resulted in functional loss. However, although the VA examiner noted objective evidence of pain with range of motion that resulted in functional impairment, the examiner made no specific finding as to the degree of range-of-motion loss due to pain on use. Where the examiner does not explicitly report “whether and at what point during the range of motion the appellant experienced any limitation of motion that was specifically attributable to pain”, an examination is inadequate. Mitchell, 25 Vet. App. at 44. Such a finding is important in providing a “clear picture of the nature of the veteran’s disability and the extent to which pain is disabling.” Mitchell, 25 Vet. App. at 44. Accordingly, the 2018 VA examination report is inadequate. Next, though flare-ups were noted to result in additional pain on use, the examiner indicated that he was unable to describe without mere speculation the extent of the limitation in functional ability due to pain, weakness, fatigability, or incoordination during a flare-up. This finding does not comply with the Court’s holding in Sharp. Due to the examination’s deficiencies, the Board finds that remand is appropriate for an adequate examination. The matter is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and her representative. 2. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected right knee disability. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The relevant Disability Benefits Questionnaire must be utilized. The examiner is also asked to indicate the point during range of motion testing that motion is limited by pain. The examiner must test the range of motion and pain of the right knee in active motion, passive motion, weight-bearing, and non-weight-bearing. The examiner must also conduct the same testing on the left knee. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so. Describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion must also be noted. If the Veteran describes flare-ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically. Should the examiner state that he or she is unable to offer such an opinion without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner is directed to do all that reasonably can be done to become informed before such a conclusion, to include ascertaining adequate information-i.e. frequency, duration, characteristics, severity, or functional loss-regarding her flares by alternative means. 3. Notify the Veteran that it is her responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel