Citation Nr: 20022415 Decision Date: 03/31/20 Archive Date: 03/31/20 DOCKET NO. 13-16 758 DATE: March 31, 2020 REMANDED An initial rating in excess of 10 percent for right knee osteoarthritis (claimed as right lower leg), associated with left ankle fracture residuals is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1958 to August 1960. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) regional Office (RO) in Guaynabo, Commonwealth of Puerto Rico. The case was subsequently transferred and is now in the jurisdiction of the San Juan, Commonwealth of Puerto Rico RO. This matter was previously before the Board in August 2015 and December 2017 and remanded to the AOJ for further development. Specifically, in August 2015, the issue was remanded to afford the Veteran a Board hearing. In December 2015, the Veteran requested his hearing be cancelled due to health issues. No request to reschedule is of record. In December 2017, the Board directed that the Veteran be afforded an additional VA examination compliant with Correia v. McDonald, 28 Vet. App. 158, 168 (2016) (that held that the final sentence of § 4.59 specifies that VA joint examinations must test for pain on both active and passive motion, in weight-bearing and nonweight- bearing and, if possible, with the range of the opposite undamaged joint). This appeal has been advances on the Board’s docket pursuant to pursuant to 38 C.F.R. § 20.900 (c). 38 U.S.C. § 7107 (a)(2). An initial rating in excess of 10 percent for right knee osteoarthritis (claimed as right lower leg), associated with left ankle fracture residuals is remanded. The Board finds that additional development is required before the claim on appeal is decided. A remand is necessary in order to ensure compliance with the December 2017 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, in the December 2017 Board remand, the Board directed that the Veteran be afforded VA examinations to determine the current level of severity of his right knee disability. It was specifically noted that if the Veteran endorses flare-ups of symptoms, the examiner must comment on the functional limitations of the right knee, and the effect of pain on range of motion. If there is no flare-up at the time of the examination, the examiner was asked to opine on further functional limitations based on the Veteran’s subjective complaints and history. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court noted that for a joint examination to be adequate, the examiner “must express an opinion on whether pain could significantly limit” a veteran’s functional ability, and that determination “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” Furthermore, the Court stated that the examiner must “obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves.” Sharp, 29 Vet. App. at 34. The examiner must also “offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans,” and the examiner’s determination “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. Id. at 10. Pursuant to the December 2017 remand, the Veteran was afforded a VA examination in March 2018 wherein he complained of flare-ups of severe right knee pain. He stated that during flare-ups and after repeated use over time he experiences difficulty walking. Following range of motion testing, the March 2018 examiner stated that pain at right knee joint could significantly limit functional ability during flareups, or when the joint is used over a period of time; however, because there is no evidence of weakness, fatigability, or incoordination during the examination such additional limitation could not be expressed in terms of additional range of motion because it will be speculative in view that there is no flare up episode during the examination. Although the March 2018 VA examiner noted the impact of flare-ups on the Veteran’s right knee disability, the Court has held that this is insufficient because the examiner did not obtain the Veteran’s lay statements as to the extent of his functional loss during a flare-up and, if possible, offer range of motion estimates based on that information. Although the examiner indicated that he could not determine the impact of the Veteran’s functional impairment during a flare-up without resorting to speculation, he did not indicate whether the inability to provide a range-of-motion estimate without resorting to speculation was due to lack of knowledge among the medical community or based on the lack of procurable information. Accordingly, a new VA examination is required. The Veteran contends he is unable to work due to his ailments, including his right knee disability. See August 2015 Correspondence. The Veteran’s claim for TDIU is inextricably intertwined with his claim for an increased rating for the service-connected right knee disability. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending adjudication. The matters are REMANDED for the following action: 1. The AOJ should obtain any outstanding records of VA medical treatment as well as any records identified by the Veteran. All efforts to obtain such records should be documented in the claims folder. All available records should be associated with the Veteran’s VA claims folder. 2. After completing the development requested in item 1, schedule the Veteran for a VA examination to determine the current severity of his right knee disability. The claims file should be made available to and reviewed by the examiner. Full range of motion testing must be performed where possible. The joint involved should be tested in both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of the opposite undamaged joint. 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 the basis for this decision. The examiner should also request the Veteran identify the extent of his functional loss during a flare-up and, if possible, offer range of motion estimates based on that information. If the examiner is unable to provide an opinion on the impact of flare-ups on the Veteran’s range of motion, he/she should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. 3. After undertaking any additional development deemed appropriate, and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran’s pending claims in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109, 7112. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.Russell 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.