Citation Nr: 18158159 Decision Date: 12/18/18 Archive Date: 12/14/18 DOCKET NO. 09-31 649 DATE: December 18, 2018 REMANDED Entitlement to a rating in excess of 10 percent for residuals of reconstruction of the left knee is remanded. Entitlement to an initial rating in excess of 10 percent for left knee instability is remanded. Entitlement to an initial compensable rating for surgical scars of the left knee is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1979 to December 2003. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a January 2009 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran filed a Notice of Disagreement (NOD) in February 2009 and the RO issued a Statement of the Case (SOC) in August 2009. The Veteran submitted a timely VA 9 in August 2009. The RO issued a Supplemental SOC in April 2010. In July 2012, the Veteran appeared at a hearing before a Veterans Law Judge (VLJ), who has since retired. A transcript of this hearing is in the claims file. In December 2012, the Board remanded the case for further development. The RO issued a Supplemental SOC in February 2013. In September 2014, the Board denied the Veteran’s claims of entitlement to service connection for varicose veins and entitlement to a rating higher than 10 percent for residuals of reconstruction of the left knee. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In April 2015, the Court granted the Joint Motion for Remand (JMR), vacating the Board’s decision regarding these issues, and remanding the claims to the Board for action consistent with the JMR. Then, because the VLJ who held the original hearing had retired, the Veteran was offered an opportunity to have another hearing with a new VLJ. The Board remanded the claims in September 2015 to arrange a new hearing, and it was held in May 2016. A copy of the transcript is associated with the claims file. In July 2016, the Board remanded the claims of entitlement to service connection for varicose veins and entitlement to a rating in excess of 10 percent for residuals of reconstruction of the left knee. The RO granted the Veteran’s claim of entitlement to service connection for varicose veins by a November 2016 rating decision and assigned a 10 percent evaluation for each extremity, effective July 16, 2008. A Supplemental SOC was issued in November 2016 continuing the 10 percent evaluation of the left knee. The matter was again remanded in April 2017 for further development. A July 2017 Supplemental SOC continued the 10 percent evaluation of the left knee. Subsequently, in an August 2017 rating decision, the RO granted a 10 percent rating for left knee instability and noncompensable ratings for left knee scars. The Veteran submitted a statement in September 2017 asserting entitlement to ratings in excess of those assigned in the most recent rating decision. In November 2017, the Board denied the claims for increased ratings for left knee residuals of reconstruction, instability, and scars. The Veteran appealed the Board’s denial of increased ratings to the Court. In a June 2018 Order, the Court granted the parties’ JMR, vacating the November 2017 Board decision and remanding the claim to the Board for action consistent with the terms of the Joint Motion. 1. Entitlement to a rating in excess of 10 percent for residuals of reconstruction of the left knee, in excess of 10 percent for left knee instability, and to an initial compensable rating for surgical scars of the left knee is remanded. While the record contains a contemporaneous VA examination regarding the Veteran’s left knee disability, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). As noted in the June 2018 JMR, the April 2017 VA examiner did not provide a sufficient explanation for his inability to provide an opinion in terms of the degree of additional range of motion lost due to flare-ups. Thus, a new examination is warranted to assess the impact of flare-ups on the left knee range of motion. As part of further VA examination of the left knee disability, the examiner is also requested to discuss the Veteran’s reported history of knee instability and painful scarring, including consideration of lay statements and treatment records. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination of the current severity of his left knee disability, to include limited motion, instability, and scarring. (a.) The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. (b.) The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to left knee limited motion, instability, and scarring and discuss the effect of the left knee disability on any occupational functioning and activities of daily living. Pursuant to the Court Order Joint Motion for Remand, in regard to flare-ups, if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran’s functional loss due to flares expressed in terms of the degree of additional range of motion lost. [The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran.] (c.) The examiner should also discuss the Veteran’s reported history of left knee instability and painful scarring, including consideration of lay statements and treatment records. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jamison, Elizabeth G.