Citation Nr: 21001357 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 15-43 482 DATE: January 7, 2021 REMANDED Entitlement to an evaluation in excess of 10 percent for service-connected right knee degenerative joint disease with scars (hereinafter, service-connected right knee disability with scarring) is remanded. Entitlement to an increased evaluation for service-connected left knee degenerative joint disease with scars (hereinafter, service-connected left knee disability with scarring), evaluated noncompensably (zero percent) disabling prior to October 25, 2018, and 10 percent disabling, thereafter, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1996 to July 2006, to include service in Southwest Asia Theater of operations during the Persian Gulf War. This matter comes to the Board of Veterans' Appeals (Board) from a June 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. In a July 2019 Decision Review Officer (DRO) decision, the AOJ increase the evaluation assigned for the Veteran’s service-connected left knee disability from zero percent to 10 percent, effective from October 25, 2018. As this determination did not represent a full grant of the benefits sought on appeal, the issue remained in appellate status, and has been recharacterized to reflect the “staged” evaluation created throughout the pendency of the appeal. See Hart v. Mansfield, 21 Vet. App. 505 (2007); AB v. Brown, 6 Vet. App. 35, 38-39 (1993). In October 2019, the Veteran presented testimony in support of her appeal at a Board hearing conducted by the undersigned Veterans Law Judge (VLJ) via videoconferencing equipment. A transcript of the October 2019 hearing is associated with the file. At the Board hearing, the Veteran and his representative asked the undersigned VLJ to hold the record open for 60 days so that additional evidence could be submitted. These issues were previously before the Board in January 2020, when it was determined that a remand was necessary to ensure that VA fulfilled its duty to assist the Veteran. The Board’s January 2020 remand directive and the subsequent actions by the AOJ will be discussed below. These issues have been returned to the Board fir further appellate consideration. 1. Entitlement to an evaluation in excess of 10 percent for a service-connected right knee disability with scarring is remanded. 2. Entitlement to an increased evaluation for service-connected left knee disability with scarring, evaluated noncompensably disabling prior to October 25, 2018, and 10 percent disabling, thereafter, is remanded. As detailed in the Board’s January 2020, a remand was necessary to obtain medical evidence which provided adequate statements concerning the severity of the functional impairment of the Veteran’s service-connected knee disabilities upon repetitive motion testing, during a flare-up of symptoms, and in weight-bearing and nonweight-bearing positions, contemporaneously and retrospectively throughout the entirety of the appeal period (since October 7, 2010). The Veteran was provided VA knee and scar examinations in October 2020; however, the Board concludes that a remand is necessary because the requested findings concerning the Veteran’s knees remains inadequate for the purpose of readjudicating these issues. Specifically, while the examiner provided contemporaneous range-of-motion findings for each knee during a flare-up of symptoms as per Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017), the same was not provided retrospectively for the time of the October 2018 VA examination – which was the primary reason for the January 2020 Board remand. To this point, the United States Court of Appeal for Veteran’s Claims (Court) has recently provided guidance for cases involving a VA examiner’s description of additional limitation and functional impairment during a flare-up of symptoms currently and in the past under Sharp. In Cagliero v. Wilkie, No. 19-6895 (November 30, 2020), a non-precedential single-judge memorandum decision issued by the Court, provided that a Sharp-compliant examination (1) describes the increased symptoms during a flare-up and (2) describes the increased limitation of the affected joint (in degrees) during a flare-up. In the present case, the October 2020 VA examiner did not address the latter of these criteria retrospectively for the time of the October 2018 VA examination, which was deficient for this same reason. While the Board notes the inherent difficulty of providing retrospective range-of-motion findings, as will be further discussed in the remand directives, it is possible that this information may be discerned from other medical and lay evidence contemporaneous to the time period in question. As such, a remand is necessary to ensure that she is provided a contemporaneous and adequate examination which addresses the severity of these disabilities under the governing laws. To ensure that the examiner is fully apprised of the Veteran’s complete disability picture, updated VA and private treatment records pertinent to these disabilities must be sought, obtained, and associated with the file. The matters are REMANDED for the following actions: 1. The AOJ must obtain and associate with the file all updated records of VA treatment. 2. The AOJ must request that the Veteran identify the names, addresses, and approximate dates of treatment for all of the non-VA health care providers who have treated her for her knee disabilities. After securing appropriate release(s) from the Veteran, the AOJ must make two attempts to obtain any identified private treatment records which are not already associated with the file or make a formal finding that a second request for such records would be futile. The Veteran must be notified of the results of the record requests. If records are not received from any source, follow the notification procedures of 38 C.F.R. § 3.159(e). 3. Thereafter, the AOJ must request that the Veteran be scheduled for appropriate VA examination(s) to evaluate her service-connected knee disabilities, to include surgical scars. The complete electronic record must be made available to, and reviewed by, the VA examiner(s) prior to conducting the examination(s). All necessary studies and testing should be conducted, to include x-ray testing of both knees. Thereafter, the VA examiner is requested to address the following: Fully describe the frequency and severity of the manifestations of the Veteran’s service-connected knee scars. Fully describe the frequency and severity of the manifestations of the Veteran’s service-connected knee disabilities. Instability and subluxation of the knees must be identified and/or ruled out. The Veteran’s knee cartilage must be fully described, as per the applicable rating criteria. *To the degree possible, it would be helpful to schedule the Veteran for a VA examination during a flare-up of her service-connected knee disabilities. *In addition to the information requested by the standard DBQ relating to the knees, the examiner must specifically address the following: -The VA examiner is requested to describe the limitation of motion of the Veteran’s knees in accordance with the laws pertinent to evaluating such disabilities, to include on repetitive motion testing, on active and passive motion in weight-bearing and nonweight-bearing positions, and during flare-ups of symptoms, contemporaneously and retrospectively corresponding to the time of the October 2018 VA examination. *Regarding the requested findings during a flare-up of symptoms, if the current examination is not being conducted during a flare-up of knee symptoms, the VA examiner is requested to convey any increased symptomatology and limited motion (the latter, expressed in degrees) during a flare-up of symptoms based on the Veteran’s statements and other medical evidence of record, to include within his VA and/or private treatment records. *In providing the requested information retrospectively for the time of the October 2018 VA examination, the VA examiner is encouraged to review all evidence (lay and medical) within the VA file contemporaneous to the October 2018 VA examination, and provide the requested findings in your best estimate (increased symptoms and limitation of motion – with the latter expressed in degrees) based on this information. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 4. Thereafter, the AOJ must readjudicate the issues remaining on appeal. If any benefit is not granted to the fullest extent, the Veteran and her representative must be furnished with a copy of this readjudication and be afforded the applicable opportunity to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, 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.