Citation Nr: 20072801 Decision Date: 11/12/20 Archive Date: 11/12/20 DOCKET NO. 14-31 537A DATE: November 12, 2020 REMANDED Entitlement to an increased rating for left knee chondromalacia patella, grade III with instability associated with left femur fracture with residual shortening of the femur, currently evaluated as noncompensable prior to August 29, 2016, and as 10 percent disabling thereafter, is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from July 1980 to July 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2017, the Veteran provided testimony before the undersigned Veterans Law Judge. A transcript of the record is associated with the claims file. This matter was previously remanded in March 2018 and June 2020 to the Agency of Original Jurisdiction (AOJ) for further development. The matter now returns to the Board for appellate consideration. Entitlement to an increased rating for left knee chondromalacia patella, grade III with instability associated with left femur fracture with residual shortening of the femur, currently evaluated as noncompensable prior to August 29, 2016, and as 10 percent disabling thereafter, is remanded. The Veteran contends that his left knee disability warrants a rating in excess of the non-compensable disability rating prior to August 29, 2016 and in excess of 10 percent thereafter. Although the Board regrets the delay, a remand is required before an appellate decision can be rendered. A September 2019 VA Disability Benefits Questionnaire (DBQ) reflects abnormal ranges of motion in the left knee, with flexion limited to 90 degrees and extension to 0 degrees. The examination also reflects pain and functional loss upon flexion and extension, pain on weight bearing, localized tenderness, crepitus, reduction in muscle strength, history of recurrent subluxation, recurrent effusion w/ intermittent swelling in both knees, joint instability, and leg length discrepancy, but no evidence of ankylosis and a meniscal condition. The examiner reported no pain with passive range of motion testing. The examiner also indicated that passive range of motion was unchanged compared to active range of motion, weight bearing testing could not be performed due to excessive pain, and that subluxation and nonunion of the tibia and fibula instability with loose motion were not demonstrated. An October 2019 DBQ was submitted by the Veteran. The examination reflects abnormal ranges of motion in the left knee, with flexion limited to 85 degrees and extension to -15 degrees, with additional limitation in range of motion after repetitive use testing. There was pain on weight bearing and non-weight bearing, active and passive, and repetitive use testing. The examination also reflects no evidence of ankylosis or subluxation, but notes a history of effusion, lateral instability, length discrepancy, and frequent episodes of joint locking. The Board finds the September 2019 and October 2019 DBQs are inadequate. The September 2019 examination is inadequate due to inconsistencies regarding the noted history of subluxation and the lack of current findings for subluxation. The October 2019 examination is also inadequate due to inconsistencies in its findings. The examiner indicated that there is no history of recurrent subluxation, however, the evidence of record shows a history of subluxation. See August 2016 and September 2019 DBQ. Furthermore, passive range of motion measurements upon weight bearing and non-weight bearing testing were not documented. On remand, these discrepancies should be addressed in a new examination. Moreover, remand is required in this case per the Veteran’s request. In a September 2020 statement, the Veteran indicated that he wanted the October 2019 DBQ to be reviewed by the agency of original jurisdiction (AOJ) in the first instance. The matter is REMANDED for the following actions: 1. Schedule the Veteran for an examination to determine the current severity of his left knee disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. If feasible, and if current findings contradict those from prior examinations, the examiner should endeavor to provide retrospective findings of the nature and severity of the left knee disability over the claim period. VA examination findings from January 2012, August 2016, May 2018, September 2019, and the private October 2019 DBQ should be reviewed. To comply with Correia v. McDonald, the examiner must test and record the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing of both knees. 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. The examiner is also asked to reconcile any inconsistencies in prior examinations between the Veteran’s history of recurrent subluxation and any current findings. All pertinent symptomatology and findings must be reported in detail in accordance with rating knee disabilities. All ranges of motion involving the Veteran’s left knee disability should be tested, and the examiner should note if repeated range of motion testing results in additional limitation of motion, or in functional loss, or there is weakened movement, excess fatigability, or incoordination attributable to the Veteran’s disability, expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. Furthermore, an opinion must be given as to whether any pain associated with the Veteran’s left knee disability could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss due to pain on use or during flare-ups. Notably, to comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flare-ups or repetitive use over time, and if so, the examiner must estimate range of motion during flare-ups or repetitive use over time based upon relevant information elicited from the Veteran, review of the claims file, and the current examination results pertaining to the frequency, duration, characteristics, severity, and functional loss during flare-ups and repetitive use over time. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as observable symptomatology, including reduced range of motion. If there is a medical basis to support or doubt the history provided by the Veteran, particularly pertaining to his description of reduced range of motion during flare-ups or repetitive use over time, the examiner should provide a fully reasoned explanation. 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). 2. Then, readjudicate the Veteran’s claim on appeal. If the benefit sought on appeal remains denied, provide the Veteran and his representative a supplemental statement of the case and allow an appropriate period for response. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. Asfaw, 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.