Citation Nr: 21061599 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 18-20 991 DATE: October 4, 2021 REMANDED Entitlement to increase rating in excess of 10 percent for left knee degenerative joint disease with meniscal tear is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from January 1975 to April 1975 and the Navy from October 1976 to October 1980. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a September 2015 rating decision by a Department of Veteran Affairs (VA) Regional Office (RO). In February 2018, the RO continued the disability rating of 10 percent for the service-connected left knee disability degenerative joint disease with meniscal tear. The Veteran testified at the hearing before the undersigned Veterans Law Judge in September 2020. A copy of the proceeding is associated with the electronic claims file. The Veteran stated that his left knee "has gotten worse since 2018." During the May 2018 VA examination, the Veteran reported functional loss or functional impairment of his left knee. The examiner indicated that the Veteran had pain on exam and it caused functional loss. The examiner indicated that the examination of the Veteran's left knee was medically consistent with the Veteran's statements describing functional loss with repetitive use over time and during flare-ups. The examiner opined that he was unable to say without mere speculation as to whether pain, weakness, fatiguability, or incoordination significantly limit function ability with repeated use over a period of time because he was not able to examine the Veteran after multiple repetitions over time. The Board find the reports of the May 2018 VA examination problematic because the examination is contemporaneous to the September 2017 decision of the United States Court of Appeals for Veterans Claims (Court) in Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017). In Sharp, the Court spoke to the nature of the evidence at the disposal of most examiners such that estimates of functional loss during flare-ups and repetitive use over time can be made without resorting to speculation. To make such estimates, the examiner must "obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves." Id. In other words, it is anticipated that examiners will offer flare and repetitive use opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans. Id. Although the Veteran indicated at the hearing that the 2018 was one of the most thorough, it nevertheless failed to provide separate range of motion with repetitive use over time and degree for which pain is elicited during active motion. The Board regrets the additional delay, it is necessary to ensure that there is complete record upon which to decide the claims so that the Veteran is afforded every possible consideration. As such, on remand, the Veteran must be afforded a new VA examination to determine the nature and severity of his left knee limitation of flexion and extension, taking into consideration his statements, the evidence of record, and accepted medical principles. Accordingly, the matters are REMANDED for the following action(s): 1. Obtain updated VA treatment records. 2. Thereafter, schedule the Veteran for a VA examination to assess the current severity of his left knee disabilities. A remand is necessary because the May 2018 VA examination report does not provide separate range of motion findings in degrees for active and passive range of motion with repetitive use over time. Moreover, the examination report specified that there was pain in active motion, but the report did not indicate in degrees when the pain started. The examiner should answer the following questions based on a review of the claims file and interview and examination of the Veteran. All necessary diagnostic testing should be performed. Left knee must be examined, and all testing results (including range of motion findings) must be reported for the left knee. Range of motion measurement must be included for active and passive motion in both weight bearing and non-weight bearing circumstances. If pain is noted, the point in the range of motion at which pain starts should be clearly noted. The examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. The examiner should work with the Veteran to estimate functional loss (to include range of motion limitations) during flare-ups by describing and demonstrating typical flare-up symptoms (and measuring these demonstrations with a goniometer). Please note that the Board cannot accept a rationale that the Veteran is not having a flare-up at the time of the examination or that repetitive use over time was not directly observed to explain why range of motion values cannot be provided. A complete rationale must be provided for all opinions expressed. If an opinion cannot be offered without resort to mere speculation, the examiner must indicate why this is the case and indicate what additional evidence, if any, would allow for a more definitive opinion. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brooks, J. G. 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.