Citation Nr: 20006451 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 12-30 246 DATE: January 27, 2020 REMANDED Entitlement to higher staged disability ratings for service-connected right knee disability, status post total knee replacement, rated 30 percent from May 1, 2012 through December 4, 2016, and 60 percent from December 5, 2016 (excluding a period of a temporary total convalescence rating pursuant to 38 C.F.R. § 4.30) is remanded. Entitlement to higher staged disability ratings for service-connected left knee disability, status post total knee replacement, rated 30 percent from May 1, 2012 through April 25, 2018, and 60 percent from April 26, 2018, is remanded. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1977 to January 1980 and from May 1982 to September 1983. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in March 2017. A transcript of that hearing is of record. These matters were previously before the Board in July 2017 and February 2018 when they were remanded for further development. The matters now return to the Board for appellate consideration. Entitlement to higher ratings for the Veteran’s service-connected knee disabilities prior to March 14, 2011 were addressed in a separate Board decision issued in July 2019. A temporary total convalescence rating pursuant to 38 C.F.R. § 4.30 was assigned for the service-connected left and right knee disabilities, each, for the period from March 14, 2011 through April 30, 2012. 1. Entitlement to higher staged disability ratings for service-connected right knee disability, status post total knee replacement, rated 30 percent from May 1, 2012 through December 4, 2016, and 60 percent from December 5, 2016 (excluding a period of a temporary total convalescence rating pursuant to 38 C.F.R. § 4.30) is remanded. 2. Entitlement to higher staged disability ratings for service-connected left knee disability, status post total knee replacement, rated 30 percent from May 1, 2012 through April 25, 2018, and 60 percent from April 26, 2018, is remanded. The Veteran attended VA examinations in October 2016 and March 2019 to assess the severity of his bilateral knee disabilities. While the October 2016 examiner indicated that the examination was conducted during a flare-up and after repetitive use over time, the October 2016 examination did not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016) as the examination report does not contain passive range of motion measurements. Further, the October 2016 examiner indicated that flare-ups of the left and right knee manifest in constant pain, and that the examination was conducted during a flare-up. However, the examiner noted no pain in the left knee. The Board finds an addendum retrospective medical opinion in compliance with Correia should be obtained for the condition of the Veteran’s right knee disability for the rating period from May 1, 2012 through December 4, 2016, and for the left knee disability for the rating period from May 1, 2012 through April 25, 2018. See Chotta v. Peake, 22 Vet. App. 80, 85 (2008) (holding that the duty to assist may include obtaining a retrospective medical opinion to fill in gaps in the medical evidence of record). On remand, the examiner should clarify why there was no pain on examination when flare-ups were noted to manifest in pain. 3. Entitlement to a TDIU is remanded. The Board notes that the Veteran’s only service-connected disabilities are related to his knees and the period for consideration for a TDIU is to the present. The Veteran underwent a VA examination for the knees in April 2019. The examiner indicated that with regard to the functional impact of flare-ups and repetitive use, the loss of motion would depend on the activity and severity of the pain experienced. The Board finds that the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The Board finds that the functional impact of flare-ups and repetitive use over time is relevant to determining whether the Veteran is able to secure and maintain a substantially gainful occupation. Further, on remand, the examiner should clarify what is meant by their statement that “today’s degrees in range of motion do not appear suggestive of what one should expect considering the Veteran’s history.” The matters are REMANDED for the following action: 1. Forward the record and a copy of this remand to the examiner who provided the October 2016 VA knee examination, or if that examiner is unavailable, to a suitably qualified VA examiner, for completion of an addendum opinion. A new examination should be conducted if necessary for an adequate opinion. The examiner must provide, if possible, retrospective range of motion measurements on passive motion for the right knee disability for the rating period from May 1, 2012 through December 4, 2016, and for the left knee disability for the rating period from May 1, 2012 through April 25, 2018, based on review of the medical and lay evidence of record. If this is not possible, the examiner should explain why this is so. The examiner is asked to provide an opinion based on measurements that may have been taken on prior examination, or retrospectively, using any information available to the examiner. Further, the examiner must address whether the Veteran experienced pain on examination given that the October 2016 examiner noted the examination was conducted during a flare up manifested by pain. If there was pain on examination, the examiner should assess the impact of the Veteran’s pain during flare-ups in terms of range of motion or explain why this is not possible in consideration of the holding in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). 2. Forward the record and a copy of this remand to the examiner who provided the April 2019 VA knee examination, or if that examiner is unavailable, to a suitably qualified VA examiner for completion of an addendum opinion. A new examination should be conducted if necessary for an adequate opinion. The examiner should provide a full description of the left and right knee disabilities, and report all signs and symptoms necessary for evaluating each knee disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and on repeated use over time, for each knee disability. To the extent possible, the examiner should identify all symptoms and functional impairment due to the service-connected right and left knee disabilities and discuss the effect of each knee disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, including on repeated use, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups and/or on repeated use over time, based on the other evidence of record and the Veteran’s statements. The examiner should also clarify the statement made on prior examination regarding range of motion measurements not being expected given the Veteran’s history. 3. Thereafter, after undertaking any other development deemed appropriate, readjudicate the issues on appeal. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Baker, 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.