Citation Nr: 20046496 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 16-15 248A DATE: July 13, 2020 REMANDED Entitlement to an initial compensable rating for service-connected left knee patellofemoral syndrome prior to January 9, 2020, and a rating in excess of 10 percent for service-connected left knee patellofemoral syndrome with osteoarthritis since January 9, 2020, is remanded. Entitlement to an initial compensable rating for service-connected right knee patellofemoral syndrome prior to January 9, 2020, and a rating in excess of 10 percent for service-connected right knee patellofemoral syndrome with osteoarthritis and residuals, meniscal tear, since January 9, 2020, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1974 to December 1975. In October 2019, the Department of Veterans Affairs (VA) Board of Veterans’ Appeals (Board) remanded the issues of entitlement to initial compensable ratings for right left knee patellofemoral syndrome; the claims file has been returned to the Board for adjudication. Resultant to the Board’s October 2019 Remand, the VA Regional Office (RO) issued an April 2020 rating decision wherein 10 percent ratings were assigned to the Veteran’s service-connected left knee patellofemoral syndrome with osteoarthritis and service-connected right knee right knee patellofemoral syndrome with osteoarthritis and residuals, meniscal tear, each effective January 9, 2020. The issues are captioned to reflect such herein. Entitlement to initial compensable ratings for service-connected left knee and right knee patellofemoral syndrome prior to January 9, 2020, and ratings in excess of 10 percent for service-connected left knee patellofemoral syndrome with osteoarthritis and right knee patellofemoral syndrome with osteoarthritis and residuals, meniscal tear, since January 9, 2020, are remanded. The Board, in its October 2019 Remand, considered that the Veteran most recently underwent a VA examination to assess his service-connected knee disabilities in August 2014. The Board determined that given the evidence of record that need not be repeated herein, there had been a worsening of the Veteran’s bilateral knee disabilities since the August 2014 VA examination and the need for more current findings necessary to rate the knee disabilities was warranted. The Board directed the RO to afford the Veteran a new VA examination. In a January 2020 Disability Benefits Questionnaire (DBQ), the examiner reported, in pertinent part, that the Veteran denied flare-ups of bilateral knee symptoms and presented with pain on weightbearing during range of motion testing, bilaterally. The examiner also reported that there was evidence of pain on passive and non-weightbearing range of motion testing, bilaterally. Case law provides a precedential finding that 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weightbearing. Correia v. McDonald, 28 Vet. App. 158 (2016). While the VA examiner, in January 2020, noted pain on passive and non-weightbearing range of motion testing, bilaterally, it does not appear that the examiner conducted range of motion testing in all planes of motion, or discuss why such would be medically contraindicated as is required under Correia. Thus, the January 2020 VA examination is inadequate and on remand, the RO should afford the Veteran a VA examination to determine the current severity of his service-connected left and right knee disabilities considering Correia. While the Veteran denied flare-ups of bilateral knee symptoms in January 2020, to the extent that he may report such in the examination contemplated by the Board at this time, in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the United States Court of Appeals for Veterans Claims (Court) recently addressed the adequacy of a VA examiner’s opinion when providing an opinion as to additional functional loss during flare-ups of a musculoskeletal disability, pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). Noting that a VA joints examination that fails to take into account the factors listed in 4.40 and 4.45, including those experienced during flare-ups, is inadequate for evaluation purposes, the Court held that an examining VA clinician must “obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veterans themselves.” See Sharp, 29 Vet. App. at 32, 34-35 (citing DeLuca, 8 Vet. App. at 206-207 and Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011)). Flare opinions should thus be “based on estimates derived from information procured from relevant sources, including the lay statements of Veterans,” and 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. Accordingly, before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must “elicit relevant information as to the Veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the Veteran’s functional loss due to flares based on all the evidence of record, including the Veteran’s lay information, or explain why she could not do so.” See Sharp, 29 Vet. App. at 34-35 (citing DeLuca, 8 Vet. App. at 206-207; Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011) (finding inadequate a medical opinion where an examiner did not offer an opinion as to additional function loss during flares “despite noting the appellant’s assertions” regarding the frequency, duration, and severity of those flares); and Petitti v. McDonald, 27 Vet. App. 415, 429-30 (2015) (holding that credible lay evidence of functional loss due to pain, including during flare periods, observed outside of the VA examination context could constitute objective evidence in support of an evaluation). The most recent VA treatment records available for Board review are dated in October 2019; on remand, the RO should obtain and associate with the claims file the Veteran’s updated VA treatment records. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from October 2019 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left and right knee disabilities. 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. (a) The examiner must test the Veteran’s range of motion bilaterally, in active motion, passive motion, with weight-bearing and without weight-bearing. 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). (b) The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups of left and/or right knee symptoms, 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 and the Veteran’s statements. 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). P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.