Citation Nr: A19002012 Decision Date: 10/16/19 Archive Date: 10/16/19 DOCKET NO. 181207-1101 DATE: October 16, 2019 REMANDED Entitlement to an initial rating in excess of 10 percent disabling for service-connected right knee strain is remanded. Entitlement to an initial rating in excess of 10 percent disabling for service-connected left knee strain is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 2006 to October 2008. She filed the claim currently on appeal in October 2017. In a February 2018 rating decision, the AOJ granted service connection for the bilateral knees and assigned 10 percent ratings for each knee. The Veteran filed a notice of disagreement (NOD) with her assigned ratings in June 2018. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with the Department of Veterans Affairs (VA)’s decision on their claim to seek review. The Veteran chose to participate in VA’s test program RAMP, the Rapid Appeals Modernization Program. This decision has been written consistent with the new AMA framework. The Veteran selected the Higher-Level Review lane when she submitted her RAMP election form on September 10, 2018. Accordingly, in October 2018, the AOJ issued an AMA rating decision that considered the evidence of record as of the date VA received the RAMP election form. The Veteran timely appealed this rating decision to the Board on December 7, 2018 via a NOD and requested the Evidence Submission review option. Based upon the Veteran’s choice to opt in to RAMP, as well as her selection of the Evidence Submission review option, the Board may consider evidence submitted during the following time periods: (1) from the date of claim, October 2, 2017, to the receipt of the RAMP election form, September 10, 2018; and (2) from December 7, 2018 to March 7, 2019, the 90-day period following receipt of the NOD. Entitlement to initial ratings in excess of 10 percent disabling for service-connected right and left knee disabilities are remanded. After reviewing the evidence of record, the Board finds that the issues of entitlement to initial ratings in excess of 10 percent disabling for service-connected right and left knee disabilities, based on limitation of flexion, must be remanded to correct duty to assist errors that occurred prior to receipt of the Veteran’s RAMP election form. At the February 2018 VA examination, the Veteran endorsed flare-ups with running. However, the examiner concluded that he would be unable to say without mere speculation if pain, weakness, fatigability, or incoordination significantly limited the Veteran’s functional ability with repeated use over time or during flare-ups. The examiner explained that the “Veteran is not in stated condition to make this determination.” In Sharp v. Shulkin, the United States Court of Appeals for Veterans Claims (Court) reiterated that, when evaluating joint disabilities in the rating schedule for the musculoskeletal system and applying 38 C.F.R. §§ 4.40 and 4.45, examiners should provide opinions in terms of whether pain further reduces functional ability during flare-ups in terms of the degree of additional range-of-motion loss. 29 Vet. App. 26, 32 (2017) (quoting DeLuca v. Brown, 8 Vet. App. 202, 206 (1995)). In the instant case, however, the examiner did not provide any estimations regarding probable additional losses in functionality during a flare-up. As such, the Board finds that the AOJ committed a duty to assist error by issuing a decision that relied on an inadequate VA medical opinion. Due to the amount of time which will pass on remand, updated treatment records should be obtained and associated with the record. The matters are REMANDED for the following action: 1. Obtain updated treatment records. 2. Take all reasonable measures to schedule the Veteran for a VA examination to assess the current nature and severity of her service-connected right and left knee disabilities. Range of motion should be reported, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in functional loss. (A) Based upon a review of the medical records, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during the examination, state whether the Veteran experiences flare ups of her service-connected right and left knee disabilities, and how she characterizes the additional functional loss during a flare. If the Veteran describes experiencing flare ups, identify the: frequency; duration; precipitating factors; and alleviating factors. (B) Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that during a flare up range of motion is additionally limited to X degrees (the measurement required for the next higher rating). Please explain why or why not. (C) Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that repetitive use over time additionally limits motion to 30 degrees or less (for flexion) or 10 degrees or more (for extension). Please explain why or why not. (D) Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that during a flare up the disability is manifested by effusion and/or locking. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). (Continued on the next page)   If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner’s lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. Julie C. Unger Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Bilstein, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.