Citation Nr: 19149727 Decision Date: 06/26/19 Archive Date: 06/25/19 DOCKET NO. 12-26 853 DATE: June 26, 2019 REMANDED Entitlement to a disability rating in excess of 10 percent for left knee osteoarthritis (left knee disability) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1984 to June 1992. In December 2018, the United States Court of Appeals for Veterans Claims (Court) granted the Veteran’s and the Secretary’s joint motion for partial remand (JMPR), vacating and remanding that part of the Board’s October 2017 decision that denied entitlement to a disability rating in excess of 10 percent for left knee osteoarthritis (left knee disability). In pertinent part, the JMPR noted that the Board failed to address whether a May 2017 VA examiner’s rationale was adequate in its October 2017 decision. More specifically, in a prior Board decision, the Board asked the agency of original jurisdiction (AOJ) to secure a retrospective opinion as to the range of motion findings for pain on both active and passive motion, on weight-bearing and nonweight-bearing. The May 2017 VA examiner could not provide this opinion without resorting to speculation, but did not explain why this was so. On remand, to comply with the stipulations of the JMPR, the Board believes an updated knee examination should be scheduled, and another attempt should be made to obtain the previously-requested opinion. On remand, the VA examiner must also attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups, and provide an estimate of motion loss in terms of degrees, if any. Sharp v. Shulkin, 29 Vet. App. 26 (2017). 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. Additionally, pertinent VA treatment records have been associated with the file since the July 2017 supplemental statement of the case (SSOC) was issued. In a June 2018 VA progress note, the Veteran requested a knee brace for his left knee, which he reported “gives out at times.” See also March 2014 VA primary care note. On remand, the examiner should consider and comment on medical and lay evidence suggesting instability of the Veteran’s left knee. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to assess current severity of his service-connected left knee disability. The examiner should perform range of motion and instability testing. The examiner should take a history from the Veteran as to the progression of his left knee disability. The examiner should test for pain in active and passive motion, and in weight-bearing and nonweight-bearing. The examiner should also review the November 2011 examiner’s report, and respond to the following question: Is it at least as likely as not (50 percent probability or greater) that range of motion would be worse than recorded on the November 2011 examination if testing were performed at that time in (a) active motion; (b) passive motion; (c) in weight-bearing; (d) in nonweight-bearing? If the answer is “no” to each of the above, please explain how this conclusion was reached. If the answer is “yes” to any of the above, please provide an estimate as to amount of additional range of motion lost, in flexion or extension, to the extent possible. E.g., less than 5 degrees additional loss of flexion, 10 degrees additional loss of extension, etc. Based upon a review of the medical records, lay statements submitted in support of the claim, and statements elicited from the Veteran during examination, the examiner should also state how the Veteran characterizes the additional functional loss of his left knee during a flare-up. The Veteran should be asked to identify: (1) the frequency of flare-ups; (2) the duration of flare-ups; (3) any precipitating factors; and (4) any alleviating factors. Based upon the evidence of record, and the information elicited on examination, state whether it is at least as likely as not (50 percent probability or greater) that during a flare-up limitation of flexion of the left knee is limited to 30 degrees (the measurement required for the next higher rating), and/or extension is limited to 10 degrees. If limitation of flexion is limited to less than 30 degrees, or limitation of extension is limited to more than 10 degrees, please estimate the additional degree of motion loss. The examiner should also review the November 2011 examination report and provide a response to the following question: Is it at least as likely as not that range of motion would be worse than recorded on the November 2011 examination if testing were performed during a flare-up or after repetitive use? If the answer is “no” please explain how this conclusion was reached. If the answer is “yes,” please provide an estimate as to amount of additional range of motion lost, in flexion and extension, to the extent possible. E.g., less than 5 degrees additional loss of flexion, 10 degrees additional loss of extension, etc. Responses to the medical opinions above should be supported with a clinical explanation or rationale. After considering the Veteran’s reported symptoms, and review of the record, if any of the opinions requested above cannot be provided without speculation, the examiner should explain why this is the case, to include 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). (Continued on Next Page) 2. Upon completion of the above, readjudicate the issue on appeal. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Mask, 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.