Citation Nr: A20007335 Decision Date: 04/30/20 Archive Date: 04/30/20 DOCKET NO. 190520-14356 DATE: April 30, 2020 REMANDED Entitlement to a rating in excess of 10 percent for osteoarthritis of the left knee is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from April 1966 to April 1968. He also had service in the Army National Guard. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2019 rating decision issued by the Department of Veterans Affairs (VA) Appeals Resource Center (ARC). The ARC implemented a September 2018 Board decision that granted service connection for a left leg disability, characterizing the disability as osteoarthritis of the left knee and assigning a 10 percent rating therefor, effective April 19, 2007. The Veteran timely appealed to the Board in May 2019, taking issue with the assigned rating. He selected the Evidence Submission review option, which allowed him 90 days following receipt of his notice of disagreement to submit additional evidence. 38 C.F.R. § 20.202(b)(3). Entitlement to a rating in excess of 10 percent for osteoarthritis of the left knee is remanded. The Veteran’s left knee was most recently examined in April 2016. The report from that examination was used as the basis of the Veteran’s current disability rating. See January 2019 rating decision. Unfortunately, the April 2016 examination report does not contain information essential for a proper evaluation. Specifically, the report does not meet the joint testing requirements set forth in precedential decisions issued by the United States Court of Appeals for Veterans Claims. See, e.g., Deluca v. Brown, 8 Vet. App. 202 (1995); Sharp v. Shulkin, 29 Vet. App. 26 (2017). In addition, because the appeal period stretches back to April 2007, and there is only limited evidence upon which to rate the Veteran’s disability over that period, a retrospective opinion was warranted. The Board finds that there was a pre-decisional duty-to-assist error. A new examination of the Veteran’s left knee is necessary. This matter is REMANDED for the following action: Schedule the Veteran for a VA examination of his left knee. The examiner should provide a full description of the Veteran’s associated functional impairments as they relate to the relevant rating criteria. The examination must include testing for pain on both active and passive motion, in weight bearing and non-weight bearing and, if possible, with the range of the opposite undamaged joint. If such testing is not feasible, the examiner should explain why. The examiner must attempt to elicit information regarding functional loss due to flare-ups and repeated use over time. If the Veteran suffers from such loss, the examiner should express the loss in terms of degrees of additional loss in range of motion (i.e., in addition to that observed clinically), if feasible, taking into account all of the evidence, including the Veteran’s competent statements with respect to the frequency, duration, characteristics, and severity of his limitations. The examiner is also asked to offer a retrospective opinion with respect to the severity of the Veteran’s left knee disability, in terms of limited motion and other noted impairments, going back to April 2007. Governing law requires that if a veteran is not exhibiting functional loss due to flare-ups and/or repeated use over time, examiners will nevertheless offer opinions with respect to functional loss based on estimates derived from information procured from relevant sources, including lay statements of the Veteran. An examiner must do all that reasonably should be done to become informed before concluding that an opinion cannot be provided without resorting to speculation. With that said, if it is the examiner’s conclusion that he or she cannot feasibly provide a requested opinion, even considering all of the available evidence, it must be so stated, and the examiner must provide the reasons why offering such opinion(s) is not feasible. A complete medical rationale for all opinions expressed must be provided. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board F. Lanton, 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.