Citation Nr: 21061734 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 15-33 339A DATE: October 5, 2021 REMANDED Entitlement to a rating in excess of 10 percent for a left knee disorder (excluding convalescent periods) is remanded. Entitlement to a separate compensable rating for left knee instability is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1973 to November 1975. In August 2020 and April 2021, the Board previously remanded the current claims for additional development. 1. Entitlement to an increased disability rating for the left knee disorder. In August 2020, the Board remanded the Veteran's claim for an increased disability rating for the left knee disorder for a VA examination that conformed to the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). In an attempt to comply with the August 2020 remand directives, the Regional Office (RO) procured a September 2020 VA examination. Thereafter, in April 2021, the Board remanded the Veteran's claim again. Specifically, it was noted that its decision had granted service connection for degenerative arthritis of the left knee. Therefore, the claim for an evaluation in excess of 10 percent for left knee strain with chondromalacia needed to be readjudicated in light of the service-connected disability having been expanded, but not yet rated. Since then, in July 2021, the RO procured a VA examination to assess the current severity of the Veteran's left knee disorder. In spite of the RO's attempts at obtaining adequate VA examinations, the Board finds that the current evidence of record is insufficient to adequately adjudicate the Veteran's claim. In pertinent part, while it appears that the September 2020 VA examination conforms to the requirements of Sharp, the July 2021 VA examiner did not provide the required information regarding functional limitations caused after repeated use over time or during flare-ups. The Board notes that, although a VA examination may not be conducted during a flare-up and/or after repeated use over time, the holding in Sharp provides that VA examiners should elicit information from the claimant regarding the condition of the relevant joint during such circumstances. Id. at 34. The VA examiner must then estimate the Veteran's "functional loss based on all the evidence of record, including the Veteran's lay information, or explain why he or she could not do so." Id. at 33. In this case, the July 2021 VA examiner did not attempt to elicit relevant information as to the Veteran's limitations after repeated use over time and, although the examiner stated there was no basis to offer additional losses of function or motion when it comes to repetitive use or during flare ups, it was not otherwise apparent why the examiner could not estimate additional functional loss or additional loss of range of motion based on the Veteran's statements, or why the available information in the Veteran's claims folder was not sufficient to permit such an estimate. Accordingly, remand is warranted for a new VA examination consistent with the directives herein. 2. Entitlement to a separate compensable rating for left knee instability is remanded. The claim for a separate compensable rating for instability of the left knee is inextricably intertwined with the remanded claim for an increased disability rating for the left knee disorder; thus, this issue must also be remanded, pending resolution of the inextricably intertwined issue. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: Obtain a VA examination from an appropriate examiner to evaluate the Veteran's left knee disorder. The claims folder (including a copy of this remand) must be provided to, and reviewed by, the examiner as part of the examination. All indicated tests should be accomplished, and all clinical findings should be reported in detail. The examiner is asked to describe fully the current severity of the Veteran's left knee disorder. In addition, the examiner should address the following: a) The examiner should describe any pain, weakened movement, excess fatigability, instability of station and lack of coordination present. b) The examiner should state whether the examination is taking place during a flare-up or after repeated use over time. If not, the examiner should ask the Veteran to describe the impairment associated with flare-up episodes or after repetitive use over time, to include: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or the extent of functional limitations. 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 range of motion caused by functional loss during a flare-up or after repeated use over time. If rendering this opinion is not possible, the clinician must provide an adequate explanation as to why. c) Range of motion testing must include testing in active motion and passive motion. The examiner should also discuss weight-bearing and nonweight-bearing ranges, if possible, obtain range of motion of the opposite undamaged joint. If such are not applicable, the examiner should state such along with an explanation. d) The examiner should also comment on the functional impairment caused by the Veteran's service-connected left knee disorder. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. 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 that particular question. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Metzner, Paul 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.