Citation Nr: 20021989 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 09-00 061A DATE: March 30, 2020 REMANDED Entitlement to an initial rating in excess of 10 percent prior to September 3, 2009, and in excess of 20 percent thereafter, for right knee chondromalacia patella is remanded. Entitlement to an initial rating in excess of 10 percent for right knee osteoarthritis with pain on motion is remanded. Entitlement to an initial rating in excess of 20 percent for left knee chondromalacia patella is remanded. Entitlement to an initial rating in excess of 10 percent for painful motion of the left knee is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1996 to May 2005. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. In November 2015, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. Thereafter, VA notified the Veteran that the VLJ who conducted the November 2015 Board hearing was no longer a member of the Board and that the Veteran was entitled to another hearing before a current member of the Board. In March 2019, the Veteran testified at a Board hearing before the undersigned VLJ. A transcript of that hearing is associated with the claims file. In April 2018, the Board last remanded these matters to the RO for further development. Entitlement to increased ratings for the Veteran’s left and right knee disabilities Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. In this regard, unfortunately, the Board cannot make a fully informed decision on the Veteran’s increased rating claims because the last VA examination of record, in June 2018, is inadequate insofar as the VA examiner again did not substantially comply with the April 2018 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). First, the Board notes that for increased rating musculoskeletal claims, VA examiners are required to include joint testing for pain on active and passive motion and in weight-bearing and non-weight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016); 38 C.F.R. § 4.59. As such, the April 2018 Board remand directives specifically instructed the examiner to conduct both active and passive range of motion testing in both weight-bearing and non-weight bearing and to record the results from each test including the point at which motion is limited. However, the June 2018 VA examiner did not record range of motion measurements where pain began. Additionally, while the examiner noted there was evidence of pain on passive range of motion, with weight bearing, and with non-weight bearing, the examiner did not provide these range of motion measurements or explain why he was unable to do so. The Board regrettably notes that the July 2017 and May 2016 VA examinations also did comply with these requirements under Correia. See 28 Vet. App. at 158. Second, if an examination is not conducted after repeated use over time or during a flare-up, VA examiners should provide an opinion based on estimates derived from procured information to determine additional loss of range of motion that may be present. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). In Sharp, the United States Court of Veterans Appeals (Court) explained that case law and VA guidelines do not require direct observation of functional impairment during a flare-up as a prerequisite to offering a DeLuca opinion. DeLuca v. Brown, 8 Vet. App. 202 (1995). Indeed, it is not expected that such observation will usually occur; therefore, VA examiners should offer opinions based on estimates derived from information procured from all relevant sources, including the lay statements of veterans. As such, the April 2018 Board remand directives instructed the VA examiner to elicit from the Veteran a detailed history of his symptoms during flares and after repeated use and to provide estimates of additional loss of motion. Here, the June 2018 VA examiner noted that he was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limit functional ability after repeated use over time and during flare-ups because he was not examining the joints after repeated use over time or during flare-ups. The examiner did not explain how he was unable to offer an opinion based on estimates derived from all relevant sources, including the Veteran’s lay statements. Thus, the examination is inadequate for rating purposes under Sharp. See 29 Vet. App at 33. Finally, the April 2018 Board remand directives instructed the VA examiner to comment on the Veteran’s instability/subluxation. While the VA examiner indicated the Veteran did not have a history of recurrent subluxation and lateral instability, the examiner did not specifically discuss the Veteran’s instability. Additionally, the evidence of record reflects that the Veteran has a history of recurrent subluxation and/or lateral instability. Specifically, a July 2013 VA treatment note reflects the Veteran has knee pain with subluxation of the patella and a June 2007 VA treatment note indicates the Veteran had subluxation of the right kneecap. Further, throughout the appeal period, the Veteran has reported falls, knee weakness, and associated instability problems. Accordingly, a remand is warranted for a new VA examination that complies with the requirements of Correia, Sharp, and the Board remands of record regarding the Veteran’s increased rating claims for his left and right knee disabilities. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the Veteran’s claims file. The last VA treatment of record is dated May 2018. 2. Provide the Veteran with an opportunity to identify any outstanding private records relevant to his claims. After obtaining any necessary authorization from the Veteran, any outstanding treatment records, should be obtained. 3. Then, schedule the Veteran for an updated VA examination to determine the severity of his service-connected left and right knee disabilities. The claims file, to include a copy of this Remand, should be made available to and must be reviewed by the examiner. All indicated testing should be accomplished and all symptomatology associated with the Veteran’s knee disabilities should be identified. The examiner should address and describe the severity of the Veteran’s right and left knee instability. In so doing, the examiner should consider the medical treatment records indicating subluxation and balance problems. See e.g. July 2013 VA treatment notes (reflecting that the Veteran has knee pain with subluxation of the patella); June 2007 VA treatment notes (indicating that the Veteran had subluxation of the right kneecap). The examiner should also consider the Veteran’s competent lay statements involving falls, weakness, and associated instability of his knees. In the examination report, in addition to setting forth all other pertinent findings, the examiner must address the following: (a) The examiner MUST TEST the Veteran’s range of motion on BOTH active and passive motion, on weight-bearing and non-weight-bearing, if possible AND RECORD the results for each test. (b) If there is evidence of pain on motion, the examiner MUST indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination results in any loss of range of motion. 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 so in the report. (c) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use due to the Veteran’s disability. The examiner should state whether the examination is taking place during a period of flare-up. The examiner should ask the Veteran to describe the flare-ups, if any, he experiences, including these items: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his knees and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion ESTIMATING any additional degrees of limited motion caused by functional loss during a flare-up and after repeated use over time. (d) If it is not feasible to determine the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why that is so. The examiner is further advised that the inability to provide an opinion without resorting to speculation must be based on the limitation of knowledge in the medical community at large and not a limitation - whether based on lack of expertise, insufficient information, or unprocured testing - of the individual examiner. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Purcell, 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.