Citation Nr: 18160764 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 08-05 719 DATE: December 27, 2018 REMANDED Entitlement to a rating in excess of 10 percent for degenerative joint disease (DJD) of the right knee on the basis of limitation of flexion is remanded. Entitlement to an increased rating for left knee meniscus tear with degenerative joint disease (DJD) on the basis of instability, rate noncompensable prior to January 22, 2011 and 20 percent disabling since that date (except for a period when a temporary total rating was in effect) is remanded. Entitlement to a rating in excess of 10 percent for left knee meniscus tear with degenerative joint disease (DJD) on the basis of limitation of flexion (except for a period when a temporary rating was in effect) is remanded. Entitlement to an increased rating for left knee meniscus tear with degenerative joint disease (DJD) on the basis of limitation of extension, rated noncompensable prior to January 22, 2011 and 30 percent disabling since that date (except for a period when a temporary total rating was in effect) is remanded. Entitlement to increased rating for degenerative joint disease (DJD) of the right knee on basis of limitation of extension, rated noncompensable prior to January 22, 2011 and 30 percent disabling since that date is remanded. Entitlement to total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1978 to March 1992. 1. Entitlement to a rating in excess of 10 percent for degenerative joint disease (DJD) of the right knee on the basis of limitation of flexion. The Veteran contends that he is entitled to a rating in excess of 10 percent for his right knee. His knees were most recently examined by VA in March 2018 and although the VA examiner noted the Veteran did not report experiencing flare-ups, the examiner noted the Veteran does report experiencing functional loss or impairment of the knee joint with repeated use over time. The VA examiner could not say without speculating that pain, weakness, fatigability or incoordination significantly limited the Veteran’s functional ability with repeated use over time. The reason provided by the VA examiner was that “the Veteran has not been examined after repeated use over time, thus it would only be speculative to report whether pain, weakness, fatigability, or incoordination could significantly limit functional ability.” See March 2018 Knee/Lower Leg VA Examination. The Veteran, in his own words describing his functional loss reported “Any activity makes my pain worse. I am waiting to get physical therapy.” Id. The Court in Sharp v. Shulkin, 29 Vet. App. 26, 34-36, No. 16-1385 (September 6, 2017) addressed the adequacy of a VA examiner’s opinion when providing an opinion as to additional functional loss during flare-ups of a musculoskeletal disability, pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must “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 could not do so.” See Sharp, at *9. Thus, in light of the above and given the Court’s determination in Sharp, the Board finds the matter must be remanded for a new VA examination and opinion addressing the issue of limitation of motion with repeated use over time. 2. Entitlement to an increased rating for left knee meniscus tear with degenerative joint disease (DJD) on the basis of instability, rate noncompensable prior to January 22, 2011 and 20 percent disabling since that date (except for a period when a temporary total rating was in effect). 3. Entitlement to a rating in excess of 10 percent for left knee meniscus tear with degenerative joint disease (DJD) on the basis of limitation of flexion (except for a period when a temporary rating was in effect). 4. Entitlement to an increased rating for left knee meniscus tear with degenerative joint disease (DJD) on the basis of limitation of extension, rated noncompensable prior to January 22, 2011 and 30 percent disabling since that date (except for a period when a temporary total rating was in effect). 5. Entitlement to increased rating for degenerative joint disease (DJD) of the right knee on basis of limitation of extension, rated noncompensable prior to January 22, 2011 and 30 percent disabling since that date. These claims are “inextricably intertwined” with the increased rating right knee claims remaining on appeal and must be deferred pending resolution of those claims. See Harris v. Derwinski, 1 Vet. App. 180 (1991). 6. Entitlement to total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. The TDIU claim is “inextricably intertwined” with the increased rating claims remaining on appeal and must be deferred pending resolution of those claims. See Harris v. Derwinski, 1 Vet. App. 180 (1991).   The matters are REMANDED for the following action: 1. Obtain all outstanding VA medical records and ask the Veteran to identify any private medical records he would like to be considered in connection with this appeal. 2. Schedule the Veteran for a VA examination to determine the current nature and severity of his bilateral knee disabilities. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. A copy of this REMAND shall be included in the examination report. The examiner should identify all right and left knee pathology found to be present. Full range of motion testing must be performed where possible. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. 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. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups, if any, he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his knee symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Thereafter, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response before the case is returned to the Board. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. N. Shannon, Associate Counsel