Citation Nr: 21061360 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 09-26 314 DATE: October 1, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent prior to September 22, 2009 and since December 1, 2009 for right knee osteoarthritis is remanded. Entitlement to a rating in excess of 10 percent prior to September 22, 2009 and since December 1, 2009 for right knee patellofemoral pain syndrome (PFS) and instability is remanded. Entitlement to a rating in excess of 10 percent prior to November 16, 2009 and from February 1, 2010 to March 15, 2020 and in excess of 30 percent since May 1, 2021 for left knee PFS and instability is remanded. Entitlement to an initial rating in excess of 10 percent prior to November 16, 2009 and from February 1, 2010 to March 15, 2020 for left knee osteoarthritis is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from March 1979 to April 1986 and February 1988 to January 2001. In December 2015, the Board remanded the issues of higher ratings for service-connected right and left knee PFS and instability for additional evidentiary development. In June 2017, the Board denied the issues of higher ratings for service-connected right and left knee PFS on the merits. In June 2017, the Board also took jurisdiction over the issues of higher initial ratings for service-connected right and left knee osteoarthritis and denied them on the merits. The Veteran appealed the June 2017 Board decision to the United States Court of Appeals for Veterans Claims (Court). Counsel for the Veteran and the Secretary of VA (the parties) filed a Joint Motion for Remand (JMR). An Order of the Court dated August 8, 2018 granted the motion and remanded the case to the Board. In March 2019 and October 2020, the Board remanded the issues of higher ratings for service-connected right and left knee PFS and higher initial ratings for service-connected right and left knee osteoarthritis pursuant to the JMR and for additional evidentiary development. The case has been returned to the Board for appellate review. 1. Entitlement to an initial rating in excess of 10 percent prior to September 22, 2009 and since December 1, 2009 for right knee osteoarthritis 2. Entitlement to an initial rating in excess of 10 percent prior to November 16, 2009 and from February 1, 2010 to March 15, 2020 for left knee osteoarthritis Pursuant to the October 2020 Board remand directives, the Veteran underwent VA examinations for knee and lower leg conditions in February 2021 and July 2021; however, the Board finds that additional development is needed to properly adjudicate the claim at this time. In February 2021, the VA examiner marked "yes" for the Veteran reporting flare-ups of the (unspecified) knee and reported inability to stand for a while or walk for long distances during a flare-up of symptoms. The VA examiner further noted clinical findings of the right knee did not suggest pain, fatigability, weakness, lack of endurance, or incoordination which significantly limits functional ability with flare-ups. Most recently in July 2021, the VA examiner marked "no" for the Veteran reporting flare-ups of the (unspecified) knee and noted "no response provided" regarding clinical findings for flare-ups of the right knee. Nevertheless, the VA examiner concluded that she "has no basis to deny additional losses of function or motion when it comes to repetitive use over time or during a flare-ups" after completing the in-person examination, listening to the Veteran's complete history and current subjective complaints, and review of the claims file. While functional loss of the right knee after repetitive use over time was documented in terms of degree of loss of motion, the VA examiner did not address functional loss of the right knee during flare-ups documented in terms of degree of loss of motion due to the clinical findings of pain on right knee active motion, pain on right knee weight-bearing, and pain on (unspecified) knee passive motion. See Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017). 3. Entitlement to a rating in excess of 10 percent prior to September 22, 2009 and since December 1, 2009 for right knee PFS and instability 4. Entitlement to a rating in excess of 10 percent prior to November 16, 2009 and from February 1, 2010 to March 15, 2020 and in excess of 30 percent since May 1, 2021 for left knee PFS and instability While the Board remands the issue of entitlement to a higher initial rating for service-connected right and left knee osteoarthritis for additional evidentiary development, as discussed above, that decision may impact this claim regarding a higher rating for service-connected right and left knee PFS and instability. As such, these issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following actions: 1. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of his service-connected knee disabilities. The entire claims file and a copy of this remand must be made available to the examiner for review. Full range of motion testing must be performed where possible. The joint(s) involved should be tested in both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of the opposite undamaged joint. 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 the basis for this decision. If the Veteran reports flare-up episodes, the examiner must assess any additional functional loss during flare-ups. If an assessment is not possible without resorting to speculation based on the fact that the examination was not performed during a flare-up, the examiner must elicit relevant information as to the Veteran's flare ups or ask him to describe the additional functional loss, if any, he has 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 cannot do so. Sharp v. Shulkin, 29 Vet. App. 26 (2017). If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. It is not sufficient to abstain from providing an opinion because the Veteran is not examined after repetitive use over time or not examined during a flare up. The examiner must provide all findings, along with a complete rationale for any opinions provided. 2. Then, review all examination reports and medical opinions provided to ensure that the requested information was provided. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures. 3. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Carter, 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.