Citation Nr: 1806778 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 08-21 872 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a rating in excess of 30 percent for post-operative instability of the right knee prior to October 20, 2010. 2. Entitlement to a rating in excess of 10 percent for a limitation of flexion of the right knee prior to October 20, 2010. 3. Entitlement to a rating in excess of 30 percent for a total right knee replacement from December 1, 2011. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James R. Springer, Associate Counsel INTRODUCTION The Veteran had active military service from August 1979 to August 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Waco, Texas. In November 2011, the Board remanded the appeal for additional development. In a January 2014 decision, the Board denied the claims for increased ratings, and the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2015 Memorandum Decision, the Court vacated the January 2014 decision, and remanded the appeal for further development consistent with the Memorandum Decision. The Board last remanded the appeal for further development in May 2017. As will be explained in greater detail below, the agency of original jurisdiction (AOJ) has not substantially complied with the prior remand directives, and further remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Board sincerely regrets having to remand this appeal another time. However, this remand is necessary to ensure compliance with the Board's prior remand instructions, and to afford the Veteran all consideration due to her under the law. See Stegall v. West, 11 Vet. App. 268 (1998). In the April 2015 Memorandum Decision, the Court determined that the October 2007 and December 2011 VA examinations were in adequate to adjudicate the Veteran's claims. The Court found that the examination reports did not provide any evidence that she was examined for range-of-motion loss specifically due to pain or any functional loss during flare-ups. In this regard, the Court determined that the examiner erred by not specifying at what point her loss of range of motion was due to pain or at what point evidence of pain ended. Furthermore, the Court determined that the examiner failed to properly address whether she experienced functional loss due to flare-ups. In January 2016, the Board remanded the appeal to the AOJ so that the Veteran could be afforded a new VA examination that adequately addressed the inadequacies identified by the Court. In March 2016, the Veteran underwent a new VA examination. The examiner noted her report of chronic pain that increased with standing and walking, as well as swelling at the end of the day. Her range of motion was zero to 90 degrees and, while pain was noted on flexion and extension, the examiner failed to specify at what point the Veteran's loss of range of motion was due to pain or at what point evidence of pain ended. Concerning any functional loss during flare-ups or following repeated use, the examiner stated that an opinion could not be provided because the Veteran was not experiencing a flare-up at that time and was not examiner after repeated use; thus, it would be mere speculation to express in terms of range of motion any additional loss due to pain, weakness, fatigability, or incoordination. Concerning the nature and severity of her right knee disability prior to her October 2010 surgery, the examiner stated that an opinion could not be offered without resort to mere speculation. No further discussion was provided. Concerning the nature and severity of her right knee disability since December 2011, the examiner stated that her current condition reflected her condition since December 2011. In July 2016, the Board found that the March 2016 VA examination was inadequate, as the examiner failed to describe the extent of functional loss due to pain as well as the any additional loss of range of motion. Furthermore, while the examiner stated that it would be mere speculation to express in terms of range of motion any additional loss due to pain, weakness, fatigability, or incoordination, the Board found that the examiner failed to provide a sufficient explanation for this conclusion. Thus, the Board remanded the appeal to the AOJ so that the Veteran should be afforded a new VA examination. In August 2016, the Veteran underwent a new VA examination. The examiner noted her reports of pain, swelling, limitation of motion, and instability. She stated that her range of motion had diminished following her October 2010 total knee replacement, and that she still experienced pain, swelling, and instability. The examiner noted that, due to her functional loss, the Veteran was limited in standing and walking due to pain, avoided stairs and inclines, and was limited in sitting due to stiffness. Range of motion was zero to 95 degrees and, while pain was noted on flexion and extension, the examiner failed to specify at what point her loss of range of motion was due to pain or at what point evidence of pain ended. Concerning the nature and severity of the Veteran's right knee disability prior to her October 2010 surgery, the examiner merely noted that she experienced pain, swelling, limitation of motion, and instability, and that her flexion was limited to 120 degrees. No further discussion was provided. Concerning the nature and severity of her right knee disability since December 2011, the examiner stated she experienced worsening pain and further loss of range of motion, and that these problems had remained consistent since December 2011. In May 2017, the Board determined that the August 2016 VA examination failed to comply with the Court's holding in Correia v. McDonald, 28 Vet. App. 158 (2016), and ordered a new VA examination. In June 2017, the Veteran underwent another VA examination. She reported chronic generalized pain that increased with standing or walking. She also reported recurrent episodes of medial subluxation of the right knee cap. The examiner noted that she was able to perform sedentary work and was able to perform activities of daily living. Range of motion was zero to 90 degrees and, while pain was noted on flexion and extension, the examiner failed to specify at what point the Veteran's loss of range of motion was due to pain or at what point evidence of pain ended. Concerning any functional loss following repeated use, the examiner stated that an opinion could not be provided because the Veteran was not examined after repeated use; thus, it would be mere speculation to express in terms of range of motion any additional loss due to pain, weakness, fatigability, or incoordination. Because the Veteran denied flare-ups at the examination, the examiner did not provide an opinion as to any functional loss during flare-ups. No opinion was provided as to the nature and severity of her right knee disability prior to the October 2010 surgery or since December 2011. Once again, the Board finds that the VA examination reports are inadequate to adjudicate the Veteran's appeal. With regard to the deficiencies identified by the Court, as noted above, none of the VA examinations adequately addressed any range-of-motion loss specifically due to pain and any functional loss, including any loss of motion, during flare-ups, either before October 2010 or after December 2011, as requested by the Board in prior remands. Furthermore, while pain was noted on flexion and extension, none of the examiners specified at what point the Veteran's loss of range of motion was due to pain or at what point the evidence of pain ended. Additionally, in a case issued after the May 2017 remand, the Court noted that "the VA Clinician's Guide makes explicit what DeLuca [v. Brown, 8 Vet.App. 202 (1995)] clearly implied: it 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" and that, even when the claimant is not experiencing a flare-up at the time of the examination, a VA examiner must elicit relevant information as to the veteran's flares or ask him or her to describe the additional functional loss, if any, he or she 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 he could not do so. Sharp v. Shulkin, 29 Vet. App. 26, 34-35 (2017). Here, the VA examiners noted the Veteran's reported symptoms during flare ups or following repeated use; however, the examiners failed to estimate of the loss of motion or her functional ability. Instead, the March 2016 and June 2017 VA examiner stated that an opinion could not be offered without resort to mere speculation; he did not provide a sufficient explanation as to why her functional loss due to flare ups could not be estimated. With regard to the August 2016 VA examination, the examiner made no attempt to address the Veteran's functional loss during flare-ups, including any additional loss of motion; instead, she merely noted the Veteran's complaints. Given these deficiencies, and to comply with the April 2015 Memorandum Decision and the Court's holding in Sharp, supra, the Board finds that the Veteran should once again be scheduled for a new VA examination. See Barr v. Nicholson, 21 Vet. App. 303 (2007). On remand, updated VA treatment records should be obtained an associated with the record. Accordingly, the case is REMANDED for the following action: 1. Associate any VA treatment records dated from May 26, 2017, to the present, with the claims file. 2. After obtaining all outstanding records, the Veteran should be scheduled for an appropriate VA examination by a competent medical professional other than the examiners who performed her prior VA knee examinations, to determine the current nature and severity of her service-connected right knee disability by a new VA examiner. The entire record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner must address each of the following inquiries: a) The examiner should describe all symptoms associated with the Veteran's service-connected right knee disability, both prior to October 2010 and since December 2011. b) The examiner should conduct range of motion testing (expressed in degrees) in active motion, passive motion, weight-bearing, and nonweight-bearing. If pain is noted on range-of-motion testing, the examiner must specify at what point the Veteran's loss of range of motion was due to pain and at what point the evidence of pain ended. The examiner should also indicate whether there is evidence of recurrent subluxation or lateral instability of the right knee. c) With regard to the period from December 2011, the examiner should address whether the Veteran experiences chronic residuals consisting of severe painful motion or weakness. d) The examiner should render specific findings as to the additional limitation of motion due to pain on motion, weakness, excess fatigability, or incoordination, as well as any additional functional effects, both prior to October 2010 and since December 2011. If feasible, this determination should be expressed in terms of the degree of additional range of motion lost. e) The examiner should ask the Veteran to report any range of motion loss during flare-ups or following repeated use, both prior to October 2010 and since December 2011. Record her reports and opine whether the reports are consistent with the disability found on the examination. Even if the Veteran is not experiencing a flare-up at the time of the examination, the examiner must elicit relevant information as to her flare ups and ask her to describe the additional functional loss, if any, she suffers during flare-ups or following repeated use. The examiner should then estimate the functional loss, including loss of range of motion, due to flare-ups or following repeated use based on all the evidence of record-including the Veteran's lay statements, for the periods prior to October 2010 and since December 2011. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran's description as to the severity, frequency, duration of the flare-ups and her description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). In addressing such inquiries, the examiner should take into consideration all of the evidence of record, to include medical records as well as the Veteran's lay statements, accepted medical principles and objective medical findings. All examination findings/testing results, along with a complete, clearly-stated rationale for any opinion offered, must be provided. 3. Thereafter, and after any further development deemed necessary, the appeal should be reajudicated. If the benefits sought on appeal are not granted, the Veteran should be provided with a Supplemental Statement of the Case and afforded the appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2014). _________________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2014), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2017).