Citation Nr: 18159414 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 10-36 705 DATE: December 19, 2018 REMANDED Entitlement to a disability rating in excess of 10 percent for service-connected degenerative arthritis of the left knee is remanded. Entitlement to a disability rating in excess of 10 percent for service-connected degenerative arthritis of the right knee is remanded. Entitlement to a disability rating in excess of 10 percent for service-connected instability of the left knee is remanded. Entitlement to a disability rating in excess of 10 percent for service-connected instability of the right knee is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1973 to November 1976. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2009 rating decision by the Seattle Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in December 2015. A transcript of the hearing is associated with the Veteran’s claims folder. This case was previously before the Board in January 2016, October 2016, and August 2017, on which occasions the claims were remanded. 1. Entitlement to a disability rating in excess of 10 percent for service-connected degenerative arthritis of the left knee is remanded. 2. Entitlement to a disability rating in excess of 10 percent for service-connected degenerative arthritis of the right knee is remanded. 3. Entitlement to a disability rating in excess of 10 percent for service-connected instability of the left knee is remanded. 4. Entitlement to a disability rating in excess of 10 percent for service-connected instability of the right knee is remanded. Pursuant to the Board’s remand instructions, a VA examination was performed in August 2017. The Veteran reported flare-ups of bilateral knee pain. The examiner indicated that functional ability of the knees would be limited during flare-ups due to increased pain, but did not describe the flare-ups in terms of range of motion. The examiner indicated that doing so would call for speculation, as the examination was not conducted during a flare-up. The United States Court of Appeals for the Veterans’ Claims (CAVC) addressed what constitutes an adequate explanation of an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. In addition, the Board’s remand instructions requested the examiner to assess any additional functional impairment caused by factors such as pain, weakness, fatigability, or incoordination be expressed in degree of additional range of motion loss. Accordingly, given that the examiner failed to comply with the Board’s remand instructions and in light of the recent decision in Sharp, the Board finds that a new VA examination is warranted on remand. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran’s disabilities from December 2014 to the present. 2. Schedule the Veteran for an examination of the current severity of his bilateral knee disabilities. The examiner must 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 bilateral degenerative arthritis of the knees alone and discuss the effect of the Veteran’s knee disabilities on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. The examiner should provide, to the extent feasible, an estimate based on a review of the medical evidence of any difference between passive and active motion and weight-bearing and non-weight-bearing functionality for the time periods represented by the previous examinations in 2009, 2013, 2016, and 2017. If the examiner is unable to provide an estimation, he or she must provide a complete rationale for why an estimation was not provided. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Glenn, Law Clerk