Citation Nr: 21002973 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 12-05 023A DATE: January 19, 2021 REMANDED Entitlement to an evaluation in excess of 10 percent for right knee degenerative joint disease (right knee disability) is remanded. Entitlement to an evaluation in excess of 10 percent for left knee degenerative joint disease (left knee disability) is remanded. Entitlement to an evaluation in excess of 10 percent for right hip arthritis associated with degenerative disc disease (right hip disability) is remanded. Entitlement to an evaluation in excess of 10 percent for left hip arthritis associated with degenerative disc disease (left hip disability) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from May 1992 to April 1995. These matters come before the Board of Veteran’s Appeals (Board) on appeal from a May 2009 rating decision by the Regional Office (RO) relating to the knee claims, and an August 2011 rating decision relating to the hip claims. In November 2020, the Veteran testified at a Board hearing via videoconference. A transcript of that proceeding has been associated with the claims file. The Veteran’s claim for a compensable initial evaluation for his migraine headaches for the period prior to October 4, 2010, was recently remanded by the Board in March 2020 for further development (Docket No. 17-08 752). See Rating decision and codesheet, May 2013 (finding CUE in a prior rating decision and awarding service connection for migraine headaches); NOD, February 2014; Statement of the Case, January 2017; Form 9, February 2017. Although in August 2019, the Veteran withdrew his request for a Board hearing for that claim, he nevertheless had an opportunity to provide testimony regarding his headaches at the November 2020 Board hearing. At this time, the Board defers decision on the migraine headaches rating claim pending completion of additional development directed by the March 2020 Board remand. After the such development has been completed by the RO, the headaches rating claim will be returned to the Board for a separate decision. 1. Entitlement to an evaluation in excess of 10 percent for a right knee disability 2. Entitlement to an evaluation in excess of 10 percent for a left knee disability 3. Entitlement to an evaluation in excess of 10 percent for a right hip disability 4. Entitlement to an evaluation in excess of 10 percent for a left hip disability The Veteran’s right and left knee disabilities are each assigned 10 percent ratings, effective April 18, 1995. The Veteran seeks increased ratings. See Correspondence, June 2008 (informal claim); Rating decision, May 2009; Correspondence (NOD), June 8, 2009. He also seeks increased ratings for his right and left hip disabilities, which are each assigned 10 percent ratings, effective September 26, 2007. See Correspondence, April 2010 (informal claim); Rating decision, August 2011; NOD, August 2011; BVA decision, October 2014 (Manlincon); Statement of the Case, July 2018. The Veteran was most recently afforded a VA examination relating to his hips in October 2010, and relating to his knees in May 2016. At the Board hearing, however, he testified that his disabilities have worsened since the last VA examinations. The Board is also cognizant that the last two VA examination reports did not include ranges of motion in both weight-bearing and nonweight-bearing, active and passive. See Correia v. McDonald, 28 Vet. App. 158 (2016) (musculoskeletal examination was inadequate because it did not include “the results of range of motion testing ‘for pain on both active and passive motion [and] in weight-bearing and nonweight-bearing.’”). Also, the VA examiners noted the Veteran experiences flare-ups of pain, but did not describe functional loss during flare-ups in terms of ranges of motion. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The May 2016 VA examination for the Veteran’s knees shows the Veteran experiences significant functional loss after repeated use over time, but the examiner noted he could not describe such functional loss in terms of ranges of motion without resorting to mere speculation (without providing any rationale). See Sharp, supra. Therefore, the Board finds these matters should be remanded to afford the Veteran new VA examinations to address the current severity of his bilateral knee and hip disabilities, and to include ranges of motion both active and passive motion [and] in weight-bearing and nonweight-bearing. In addition, all of the Veteran’s VA treatment records from the VA medical center in Washington dated from October 1995 to May 2016 were associated with the claims file, but they consist of approximately only 31 pages. The Veteran testified at the Board hearing that he receives private treatment for his knees and hips. However, there appears to be a significant gap in the records of private treatment associated with the claims file for the 10-year period between 2008 and 2018, and no substantive record of treatment since September 2018 except a scheduling record for bilateral knee surgery in October 2020 that was ultimately postponed due to COVID. See Record, November 2020; Statement, December 2020. Therefore, on remand, the Veteran should be provided an opportunity to identify any outstanding records of treatment dated during this gap in the records between 2008 to 2018, and to identify outstanding records of treatment dated since September 2018. The matters are REMANDED for the following action: 1. Ask the Veteran to identify any outstanding private treatment records relating to his bilateral knees and hips dated from December 2008 to present, and ask him to complete the requisite Form 21-4142 authorizations to obtain the records. Note: The private treatment records already associated with the claims file include: - Capitol Sports Medicine dated from January 2008 to November 2008; - Surgery Center of Chevy Chase dated in July 2018; - Community Radiology Associates dated in September 2018; and - Orthopedic Specialists of Washington dated in October 2018. 2. After the above development has been completed, obtain a new VA examination to address the current severity of the Veteran’s bilateral knee and hip disabilities – to include ranges of motion in weight-bearing and nonweight-bearing, active and passive. The claims folder should be made available to the examiner and pertinent documents therein should be reviewed by the examiner. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. The examination must comply with the requirements of 38 C.F.R. § 4.59 involving measurements of passive and active range of motion - in both weight bearing and non-weight bearing. The examiner must explain why any of these clinical tests are not appropriate or could not be performed. A complete rationale for any opinions expressed should be provided. If flare-ups are noted, the examiner should note whether pain during flare-ups additionally limits functional ability. The examiner should note whether there are any additional degrees of loss of motion due to pain during flare-ups (if it is not feasible to quantify, please explain). Also, the examiner should ask the Veteran to describe in his own words whether there is any additional functional loss during flare-ups, and the examiner should note the frequency, duration, and severity of flare-ups. The examiner should also note whether weakened movement, excess fatigability, incoordination, or pain significantly limits functional ability with repeated use over time. If so, the examiner should note whether there are any additional degrees of loss of motion as a result (if it is not feasible to quantify, please explain). Regarding both flare-ups and repeated use over time, please note to the VA examiner that if additional functional loss cannot be described in terms of degrees of limitation of motion, it should be clear that an examiner has “considered all procurable and assembled data before stating that an opinion cannot be reached,” and “that the inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large.” The Board may “accept a VA examiner’s statement that he or she cannot offer an opinion without resorting to speculation, but only after determining that this is not based on the absence of procurable information or on a particular examiner’s shortcomings or general aversion to offering an opinion on issues not directly observed.” See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The examiner should also address the effect of the Veteran’s bilateral knee and bilateral hip disabilities on his occupational functioning and activities of daily living. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. L. Juliano, 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.