Citation Nr: 21005063 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 16-57 723 DATE: January 28, 2021 REMANDED Entitlement to service connection for low back strain is remanded. Entitlement to an initial rating in excess of 20 percent for a left knee meniscal tear and arthritis is remanded. Entitlement to an initial rating in excess of 20 percent for a right knee meniscal tear, patellar fracture, and arthritis is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1976 to January 1980. This matter is before the Board of Veterans’ Appeals (Board) on appeal from September 2016 and October 2016 rating decisions. The Veteran testified before the undersigned during a November 2019 hearing. This matter was previously before the Board in January 2020, when it was remanded for additional development. Entitlement to service connection for low back strain is remanded. As part of the Board’s January 2020 remand, the agency of original jurisdiction (AOJ) was directed to obtain the Veteran’s complete service personnel records and any outstanding service treatment records from the appropriate records depository, including any records reflecting limitations placed on the Veteran’s duty during service based on his contention that he was given a limited profile following an in-service sports injury. If additional records could not be obtained, the AOJ was directed to issue a formal determination that such records do not exist or that further efforts to obtain them would be futile. A Deferred Rating Decision from October 2020 documents that the AOJ submitted a request for records in January 2020 with a response noting that all available records were shipped in September 2014. However, the file contains no record of any other requests, and rather than a formal finding that all reasonable efforts had been made and further attempts would be futile, the AOJ sent the Veteran a letter to this effect on November 2, 2020, asking the Veteran to submit any such records in his possession. However, the Veteran was offered no reasonable opportunity to respond to this request as a supplemental statement of the case (SSOC) was issued three days later. The Board finds the AOJ’s efforts to obtain the requested records fall short of the duty to assist and do not constitute substantial compliance with the Board’s prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); 38 C.F.R. § 3.159. A remand is required to ensure compliance with these directives, including making an additional request for any outstanding service records and issuance of a formal finding once these efforts have been exhausted. Entitlement to an initial rating in excess of 20 percent for a left knee meniscal tear and arthritis is remanded. Entitlement to an initial rating in excess of 20 percent for a right knee meniscal tear, patellar fracture, and arthritis is remanded. In a February 2020 VA examination, the Veteran reported he experienced flare-ups of his bilateral knee disabilities precipitated by prolonged weight bearing or with weather changes. These flares were described as increasing pain lasting one to three days and occurring weekly on average. Flares increased the Veteran’s difficulty in walking and standing more than a few minutes, as well as climbing stairs or taking more frequent breaks. Despite these reports from the Veteran, the examiner indicated in the relevant report sections that pain, weakness, fatigability, or incoordination with repeated use over time or during flare-ups did not limit the Veteran’s functional ability, and no estimate was provided of any additional limitation in range of motion in either knee related to these flares. In explaining this determination, the examiner stated that the flare-ups were not directly observed during the examination and the provided medical records made no specific references to flare-up frequency, duration, or severity in terms of decreased range of motion. Finally, after examination and listening to the Veteran’s subjective complaints, she states she had no basis to offer additional information on loss of function or motion. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court of Appeals for Veterans Claims (Court) held that 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 [he or she] could not do so.” The February 2020 examiner’s report does not contain an adequate explanation for failing to provide an estimate of functional impairment caused by the Veteran’s flares, nor is it clear she attempted to elicit the necessary information from the Veteran prior to her determination that she was unable to provide an assessment of the additional functional impairment during flare-ups. While the examiner notes that the medical records do not provide any information regarding additional impairment during flares, she fails to fully explain why the Veteran’s reports during the examination were inadequate for her to provide an assessment. The failure to address any functional limitation during flare-ups renders the examination inadequate to determine the current severity of the Veteran’s service-connected bilateral knee disabilities. See Sharp, 29 Vet. App. at 34-35 (an examination is inadequate where examiner fails to estimate functional loss due to flare-ups based on all evidence, including lay statements). As a result, the Board must remand the Veteran’s appeal of the rating assigned for his service-connected knee disabilities to ensure compliance with its prior remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Obtain and associate with the file the Veteran’s complete service personnel records and any outstanding service treatment records from the appropriate records depositories. Efforts should specifically be made to obtain records reflecting any limitations placed on the Veteran’s duty. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile. 2. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his bilateral knee disabilities. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should identify all bilateral knee pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint (in the case of the right shoulder). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. (Continued on the next page)   The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Pitman, 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.