Citation Nr: 20022457 Decision Date: 03/31/20 Archive Date: 03/31/20 DOCKET NO. 07-19 609 DATE: March 31, 2020 REMANDED Entitlement to a disability rating in excess of 10 percent for service-connected degenerative joint disease of the right knee is remanded. Entitlement to a disability rating in excess of 10 percent for service-connected left knee degenerative joint disease is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1994 to August 1997. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an initial January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2009, the Veteran appeared and testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is associated with the claims file. By way of procedural background, the Board remanded the matters on appeal in March 2010 and March 2012, and denied the claims in February 2013. The Veteran appealed this denial to the United States Court of Appeals for Veterans Claims (Court). In August 2013, the Veteran, through his attorney, and the Secretary of Veterans Affairs, submitted a Joint Motion for Remand (JMR). In an August 2013 Order, the Court granted the JMR and remanded the matters to the Board. In January 2014, the Board remanded the matters for further development. In February 2017, the Board denied ratings in excess of 10 percent for the degenerative joint disease of each knee, but remanded the issue of separate ratings for bilateral meniscal tears with instruction for the Agency of Original Jurisdiction (AOJ) to assign separate ratings for the Veteran’s bilateral meniscal tears with “locking,” pain, and effusion in the joint, and to determine the appropriate effective date for such ratings. In a subsequent June 2017 rating decision, the AOJ effectuated the grants, and assigned an initial 20 percent disability rating for a meniscal tear with locking pain and effusion for each knee. The Veteran appealed the February 2017 decision to the Court. In December 2017, the Veteran, through his attorney, and the Secretary of Veterans Affairs, submitted a partial JMR regarding the denial of increased disability ratings for the degenerative joint disease of both knees. The remand for the separate ratings for meniscal tear was left undisturbed. In a December 2017 Order, the Court granted the partial JMR and remanded the case back to the Board for further development. In April 2018, the Board again remanded this matter to comply with directives in the December 2017 JMR. Specifically, the remand was to determine whether the Veteran’s bilateral knee disability was productive of weakened movement, excess fatigability, or incoordination, and/or whether pain could significantly limit functional ability during flare-ups or when the knees were used repeatedly over time. On remand, the VA examiner was asked to express these determinations, if feasible, in terms of the degree of additional loss of range of motion or ankylosis due to any weakened movement, excess fatigability, incoordination, pain on use, or during flare-ups. The Board notes that the VA examiner was also asked to address a January 25, 2008, notation from a private treatment record reflecting “[l]ateral joint line has positive McMurray.” However, the Veteran has been separately awarded service connection for bilateral meniscal tears, and has not appealed the assigned initial ratings for these disabilities. The Veteran was provided a new VA knee examination in January 2019. He was provided diagnoses of meniscal tear and bilateral knee degenerative joint disease. The Veteran reported flare-ups of the knees; however, it was only noted that he was prescribed opioid medication for the pain, and that experienced severe pain according to movement for a maximum of 20 minutes. No further information regarding functional impairment was elicited. The Veteran also reported instability of the knees that has caused him to fall multiple times. Regarding whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time, or during flare-ups, the VA examiner indicated that the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repeated use over time or during a flare-up. The VA examiner indicated that she was unable to say without mere speculation. She reasoned that it was not possible to determine, without resorting to mere speculation, the estimated loss of range of motion because there was no conceptual or empirical basis for making such a determination without directly observing function under these conditions. The Board finds the January 2019 VA medical examination to be inadequate, as the examiner did not provide sufficient reasoning for the proffered opinion that she was unable to say without mere speculation if pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-ups or during repeated use over time. See DeLuca v. Brown, 8 Vet. App. 202, 207 (1995) (holding that examiners must contemplate additional functional loss due to weakness, fatigability, incoordination, or painful motion); Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) (holding that an examiner must attempt to elicit information regarding the severity, frequency, duration, and functional loss during flare-ups before determining that additional range of motion loss due to flare-ups cannot be estimated). Thus, the Board finds that a remand for a new medical examination is warranted. Accordingly, the matters are again REMANDED for the following action: 1. Schedule the Veteran for a VA examination to evaluate the current level of severity of his right and left knee degenerative joint disease. The claims file should be made available to the examiner. The examiner should report the extent of the Veteran’s disabilities in accordance with the VA rating criteria. The VA examiner should specifically address the following: (a.) Determine whether the Veteran’s right and left knee disability exhibits weakened movement, excess fatigability, or incoordination; specifically, attempt to elicit any such information from the Veteran. If feasible, these determinations should be expressed in terms of the degrees of additional range of motion loss or ankylosis due to any weakened movement, excess fatigability, or incoordination. (b.) Provide an opinion as to whether pain could significantly limit functional ability during flare-ups or when the knees are used repeatedly over a period of time. Specifically, attempt to elicit any such information from the Veteran. This determination should also, if feasible, be expressed in terms of degrees of additional range of motion loss or ankylosis due to pain on use or during flare-ups. (c.) Test the joints involved for pain on both active and passive movement, in weight-bearing and nonweight-bearing, unless the medical examiner determines that such testing cannot or should not be conducted. If it is not possible to provide these estimated measurements, or an opinion regarding flare-ups, symptoms, or functional impairment, 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. After undertaking any additional development deemed appropriate, and giving the Veteran a 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. T.D. JONES Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. DeChiara, 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.