Citation Nr: 20042317 Decision Date: 06/22/20 Archive Date: 06/22/20 DOCKET NO. 13-00 215A DATE: June 22, 2020 REMANDED Entitlement to a disability rating in excess of 10 percent for right knee degenerative joint disease is remanded. REASONS FOR REMAND The Veteran served on active duty from October 2003 to May 2010. This matter comes on appeal from an August 2010 rating decision issued by a Department of Veterans Affairs (VA) regional office (RO). As a matter of background, this appeal previously came before the Board in March 2015, at which time ir remanded the claim for further development. At that time, the Board also remanded the claim of service connection of a left knee disability. In October 2019, the RO issued a rating decision granting service connection of a left knee disability. As that constitutes a complete grant of that issue previously appealed, that issue is no longer before the Board. The issue of the rating for the right knee disability is the only issue remaining on appeal at this time. Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the right knee is remanded. Inasmuch as the Board regrets any further delay in the adjudication of this appeal, an additional remand is necessary. The Board remanded this appeal in March 2015 to provide the Veteran a VA examination to evaluate the current severity of his service-connected right knee disability, as well as to obtain an adequate examination that addresses competent lay statements made by the Veteran and his wife concerning the symptomatology of his right knee disability. Specifically, the Board notes that prior examinations had found no evidence of instability, despite competent lay testimony to the contrary from both the Veteran and his spouse that he had dealt with issues of instability, limping, and giving way. The Veteran underwent a VA examination in September 2019. At that time he reported that his right knee symptoms have progressively worsened over time. The examination report documents that right knee flexion and extension were normal. The examiner noted that there was pain with flexion but that it did not result in functional loss. The Veteran was able to perform repetitive-use testing and there was no limitation of range of motion after repetitive use. The examiner noted that pain significantly limits functional ability with repetitive use over a period of time but again documented normal flexion and extension when asked to describe in terms of range of motion. The Veteran reported that during flare-ups he has difficulty with prolonged standing, walking, using stairs and steps, and bending due to pain. The examiner stated that the examination was not being conducted during a flare-up and noted that pain significantly limits functional ability with flare-ups. Nevertheless, when asked to describe this functional loss in terms of range of motion the examiner documented normal flexion and extension without any description of how such loss of functionality may manifest. Further, the examiner noted that the Veteran uses knee braces occasionally for “knee stability” but indicated that the Veteran had no history of lateral instability. Stability testing was normal. The Board finds this examination problematic. Specifically, it appears the examiner failed to consider the whole record as it relates to the Veteran's claim and disregarded the lay accounts of the condition’s manifestations. As mentioned above, both the Veteran and his spouse have indicated that he experiences waxing and waning periods of increased pain, which result in impaired knee functionality including limping several times a week, as well as periods of incapacitation. In addition, the Veteran has consistently reported experiencing right knee symptoms of giving way, instability, and a locking sensation, and his spouse stated she has witnessed the Veteran almost fall down the stairs when his knee has given out. There is no indication the examiner considered these reports. Examiners simply are not free to ignore veteran's statements related to lay observable symptoms. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). This is further complicated by the fact that the examiner found no evidence of instability, despite noting that the Veteran required the use of a knee brace, for stability purposes. This discrepancy must be rectified. Therefore, the Veteran should be afforded another VA examination to determine whether or not the Veteran has any lateral instability or recurrent subluxation, and if so, the severity thereof. If the examiner concludes that these symptoms are not present, he or she should discuss the lay evidence to the contrary. Additionally, the examiner should provide adequate descriptions of the Veteran’s loss of functionality during a period of flare, in short, the examiner should rectify the Veteran’s own reports of symptoms during a flare, with the findings that no additional loss of functionality occurs. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right knee disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner should test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner should state whether the need to speculate is due to a deficiency in the state of general medical knowledge. Further, the examiner should attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record to specifically include the Veteran’s own lay statements. If it is not possible to provide a specific measurement without speculation for any of these factors, the examiner should state whether the need to speculate is due to a deficiency in the state of general medical knowledge, a deficiency in the record, or the examiner. Finally, the examiner should discuss whether or not the Veteran’s right knee disability has resulted in either lateral instability or recurrent subluxation. If no such symptoms are found on examination, the examiner should rectify this finding with the Veteran’s own lay reports of giving way and instability, as well as his recorded need for a knee brace. If such instability or subluxation is found, the examiner should opine as to the degree of severity of that symptoms. M. Pryce Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Modesto 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.