Citation Nr: 21062849 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 14-36 965 DATE: October 12, 2021 REMANDED Entitlement to an initial rating greater than 10 percent prior to May 15, 2013, and a rating greater than 20 percent thereafter, for left knee degenerative joint disease is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1944 to May 1946 and December 1964 to September 1967. He died in January 2021. See April 2021 death certificate. His surviving spouse has been substituted as the Appellant for purposes of processing the claim to completion. See April 2021 correspondence. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which granted the Veteran service connection and assigned a rating of 10 percent for degenerative joint disease of the left knee. A December 2013 rating decision increased the rating to 20 percent from May 15, 2013. A Board hearing was held in November 2018. A transcript is of record. In August 2021, the Appellant was notified that the Veterans Law Judge (VLJ) who conducted the hearing is no longer available. In the same notice, the Appellant was afforded the opportunity to request another hearing before a different VLJ within 30 days. As the Appellant did not indicate she wanted a new hearing and 30 days has elapsed, the Board will proceed with the claim. In March 2019 and February 2020, the Board remanded the claim to the Agency of Original Jurisdiction (AOJ) for further action consistent with the Board's remand directives. Importantly, the Board remanded to afford the Veteran a VA examination that accounts for his range of motion during flare-ups. The claim is back before the Board for further appellate proceedings. Regrettably, the Board finds that further evidentiary development is necessary and remands the case to ensure compliance with the Board's prior remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). During his hearing, the Veteran stated that his knee would lock-up, causing him to fall, and using the knee would increase difficulty with walking. See Board hearing Tr. at 5. The Board specifically noted this flare-up as the need for a new examination in its March 2019 order. A December 2019 VA examination report showed flare-ups upon use of the Veteran's left knee. However, the examiner did not estimate the impairment to range of motion during flare-ups or otherwise explained why an estimation was not possible. The Board, in February 2020, remanded for another examination that contemplates the impairment to range of motion during flare-ups. In an October 2020 VA examination report, an examiner erroneously stated that the Veteran did not have flare-ups. In Sharp v. Shulkin, the Court of Appeals for Veterans Claims (Court) held that a VA examination is inadequate when the VA examiner does not elicit relevant information as to the Veteran's flares or ask him to describe additional functional loss, if any, he suffered during flares and then does not "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." 29 Vet. App. 26, 35 (2019). As such, the October 2020 VA examination is inadequate for rating purposes. Id. The matter is REMANDED for the following action: 1. Obtain an opinion from an appropriately qualified clinician to determine the nature and severity of the Veteran's left knee degenerative joint disease. The claims file should be made available to and reviewed by the reviewing clinician. All findings should be reported in detail. After the record review, the reviewing clinician is asked to describe any pain, weakened movement, excess fatigability, instability of station and incoordination that was present prior to the Veteran's death. To the extent possible, the reviewing clinician should also describe the flare-ups the Veteran experienced, to include frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment experienced during a flare-up of symptoms and/or after repeated use over time. Based on the lay statements of record and the other evidence of record, the reviewing clinician 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 reviewing clinician cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the reviewing clinician 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). 2. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Strickland 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.