Citation Nr: 19192575 Decision Date: 12/10/19 Archive Date: 12/10/19 DOCKET NO. 17-11 033 DATE: December 10, 2019 REMANDED Entitlement to a rating in excess of 10 percent for service-connected left knee disability is remanded. Entitlement to a rating in excess of 10 percent for service-connected right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1986 to August 1991. The Board thanks the Veteran for his service. In December 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. In addition to the two issues currently on appeal, the Veteran’s September 2016 Notice of Disagreement appealed an initial noncompensable rating for the grant of service connection for bilateral pes planus and argued that the Board’s August 2016 grant of service connection for a “bilateral foot disability” included bilateral plantar fasciitis. In a February 2017 rating decision, the Veteran was granted an initial 50 percent rating for his service-connected foot disability. The rating decision informed the Veteran that, that because 50 percent represented the highest schedular rating, the decision was considered a resolution of the benefits sought on appeal unless the Veteran communicated a desire to continue his appeal. The record does not contain such a communication, and a statement of the case (SOC) was not issued as to that matter. Accordingly, the Board finds that the issue of entitlement to an initial increased rating for a bilateral foot disability is not on appeal before the Board. If the Veteran or his attorney believes there are any pending items on appeal for which a SOC has not been issued, the Board encourages them to contact the Regional Office to alert them of the outstanding matter. 1. Entitlement to ratings in excess of 10 percent for service-connected left and right knee disabilities are remanded. While the record contains a contemporaneous VA examination regarding the Veteran’s bilateral knee disabilities, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). See VA Examination dated February 2017. While the examiner stated that an opinion could not be provided regarding range of motion measurements during flare-ups without resort to speculation, the examiner did not indicate that the speculation was due to lack of knowledge within the medical community. Instead, she simply did not provide one because a flare-up was not observed. Additionally, the examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). See VA Examinations dated September 2016, February 2017. The examinations do not contain passive range of motion measurements or pain on weight-bearing testing. The February 2017 examiner stated that she did not conduct the testing because it was not “medically appropriate due to potentially causing worsening of the symptoms.” However, the point of conducting such testing is to determine whether, or to what extent, the Veteran’s disability worsens in those circumstances such that a higher disability rating is warranted. Thus, a temporary worsening of symptoms would be the point of taking the required measurements (i.e. it would show the Veteran’s true disability picture). There was nothing in the examination to suggest the Veteran would experience permanent worsening of his disability if he underwent standard testing procedures. The Board finds that a remand is required to obtain a new VA examination. The matters are REMANDED for the following action: 1. Attempt to associate with the record all outstanding VA and non-VA treatment records. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral knee disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria, to include evidence of instability. See, e.g. Medical Treatment Records received October 2016. In conducting testing, the examiner must: (a.) test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement 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). (b.) attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s description. If it is not possible to provide a measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge, a deficiency in the record, or the examiner. A supporting rationale for all opinions expressed must be provided. If the examiner is unable to provide any opinion as requested, the examiner should fully explain the reason why such opinion could not be rendered. The Board is not permitted to accept a rationale that the examiner is unable to offer an opinion without resort to speculation based on an aversion to offering an opinion on issues not directly observed. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Anderson, 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.