Citation Nr: 20005503 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 17-60 503 DATE: January 23, 2020 REMANDED The issue of a rating in excess of 20 percent for degenerative joint disease of the left knee is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from December 1965 to December 1968. This matter comes before the Board of Veterans’ Appeals (Board) from a November 2014 rating decision. The Veteran testified before the Board at a hearing in November 2019. A transcript of the hearing has been associated with the claims file. Left Knee Degenerative Joint Disease The Board finds that further development is necessary regarding the Veteran’s claim for a rating in excess of 20 percent for degenerative joint disease of the left knee. First, the Veteran provided credible testimony at a hearing before the Board in November 2019 regarding his left knee disability. The Veteran stated that since the last VA examination provided in November 2014, his degenerative joint disease of the left knee has worsened. The Veteran stated that he experiences swelling and instability of the knee, which was not considered in his last VA examination. The Veteran also stated that since the last VA examination he has required additional VA treatment for his left knee disability, including physical therapy and cortisone shots. The Board finds that the Veteran’s credible hearing testimony demonstrates that the left knee disability is worse than at the time of the most recent VA examination of record. Therefore, a new examination is necessary to accurately assess the current level of impairment. Snuffer v. Gober, 10 Vet. App. 400, 402-403 (1997). Next, the Board has reviewed the November 2014 VA examination and finds that it is inadequate. The examination failed to properly assess range of motion measurements during flare-ups as well as active, passive, weight-bearing, and non-weight-bearing testing. Sharp v. Shinseki, 29 Vet. App. 26 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016); DeLuca v. Brown, 8 Vet. App. 206-207 (1995). The examination also does not indicate left knee swelling and instability as reported by the Veteran in the November 2019 hearing before the Board. Therefore, as the November 2014 is inadequate, the matter must be remanded for a new examination. Barr v. Nicholson, 21 Vet. App. 303 (2007). Further, the evidence of record does not contain the Veteran’s most recent VA treatment records regarding the left knee disability, including documentation of worsening symptoms, physical therapy, and cortisone shots. Therefore, the Board finds that a remand is required to obtain updated VA treatment records. 38 C.F.R. § 3.159(c)(3); Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). The matters are REMANDED for the following action: 1. Obtain all treatment records from any VA facility from which the Veteran has received treatment. If the Veteran has received additional private treatment, he should be afforded an appropriate opportunity to submit the medical records of such treatment. 2. Following the completion of the above, schedule the Veteran for an examination to determine the nature and severity of the Veteran’s degenerative joint disease of the left knee. The claims folder must be made available to and be reviewed by the examiner. The examiner should address the following: a. Test the joint for range of motion and consider pain on both passive and active motion, in both weight-bearing and non-weight-bearing positions, including for the corresponding joint if appropriate. 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. b. The examiner should determine whether the degenerative joint disease of the left knee is manifested by weakened movement, excess fatigability, incoordination, and/or pain after repetitive use over time and/or during flare-ups. If feasible, the examiner must assess the additional functional impairment on repeated use over time and during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she should provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional should explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). Recent caselaw has held that the lack of opportunity to observe during a flare-up and/or after repeated use over time is an insufficient basis for not estimating the functional effects in terms of degrees of range of motion. c. The examiner should indicate whether instability of the left knee disability is slight, moderate, or severe. 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, the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. The examiner should also consider all lay statements submitted by the Veteran regarding his disorder. A rationale for all opinions is to be provided. If the examiner cannot provide any of the requested opinions without resorting to speculation, he or she should provide an explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Page-Nelson, 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.