Citation Nr: 21063213 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 15-35 187A DATE: October 13, 2021 REMANDED Entitlement to a rating higher than 20 percent for right knee limitation of motion prior to January 11, 2019, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1967 to December 1969. In a December 2019 decision, the Board declined to grant an increased rating for the Veteran's service-connected right knee limitation of motion prior to January 11, 2019. A December 2020 Court of Appeals for Veterans Claims (CAVC) order vacated the Board's decision regarding this issue and adopted a Joint Motion for Remand (JMR) for reconsideration of the Veteran's claim. In so finding, the December 2020 JMR indicated that the Board relied on an inadequate examination that did not comply with Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). It was noted that the October 2014 VA examiner failed to state the severity, frequency, and duration of flare ups or name precipitating or alleviating factors and estimate to what extent they affect functional impairment. The December 2020 JMR also indicated the October 2014 VA examination did not satisfy the requirements of Correia v. McDonald, 28 Vet. App. 158, 168 (2016). In May 2021, the Board remanded the claim for further development. Based on the December 2020 JMR, it was determined that a remand was needed to comply with Sharp and Correia, to determine the appropriate rating for the Veteran's right knee limitation of motion prior to January 11, 2019. While another examination was conducted on this matter in June 2021, the opinion provided is also inadequate for rating purposes. To that end, the Board requested that the VA examiner determine the following: [W]hether there is any medical reason to accept or reject the October 2014 VA examiner's estimation that the Veteran would experience an additional 10 degrees loss of flexion during flare-ups, but no additional loss of extension, amounting to a limitation of 20 degrees of flexion during flare-ups, and whether there is sufficient lay and medical evidence to determine whether the Veteran would experience greater limitation of motion during flares. In response, the VA examiner answered "agree with 10 degree flexion loss with reps. There is no longer flare status-post TKR 1/2019, however." Although the VA examiner agreed with the 10 degree flexion loss with reps, the examiner did not discuss the October 2014 opinion regarding no loss of extension and whether the Veteran would experience greater limitation of motion during flares as requested. The Board further notes that the opinion rendered does not adequately address the severity, frequency, and duration of the Veteran's flare ups prior to January 11, 2019 nor does it address to what extent, if any, they affected functional impairment. As such, another examination is needed to comply with Sharp and Correia as outlined in the December 2020 JMR. Accordingly, this matter is remanded for further development. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and severity of his right knee disability prior to January 11, 2019. After consultation with the Veteran, the examiner is asked to provide a retrospective opinion as to the nature and severity of the Veteran's right knee disability prior to January 11, 2019. The examiner should identify the extent of the Veteran's functional loss during flare-ups/after repeated use over time and offer range of motion estimates based on the information provided by the Veteran and review of the record for that period of time. In order to comply with Sharp, the examiner should ask the Veteran to identify the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment that resulted from flare-ups and after repeated use over time prior to January 11, 2019. The examiner should then reconcile the Veteran's statements with the treatment records and lay statements from September 23, 2013 to January 11, 2019 which include, but are not limited to, the July 2014 physical therapy record which noted that range of motion had been approaching normal limits with a mild extension deficit and the September 2014 orthopedic evaluation which stated that the Veteran's right knee was dramatically better with examination showing very minimal loss of extension and mild loss of flexion. In order to comply with the Court's decision in Correia, the examiner should determine whether the Veteran's range of motion results from the October 2014 VA examination would have been reduced if tested in both active and passive motion and in weight-bearing and non-weight-bearing. To the examiner's best ability, the additional range of motion loss should be described in degrees. The examiner should also determine whether there is any medical reason to accept or reject (1) the October 2014 VA examiner's estimation that the Veteran would experience an additional 10 degrees loss of flexion during flare-ups, but no additional loss of extension, amounting to a limitation of 20 degrees of flexion during flare-ups and (2) the Veteran's January 2015 statement that he was having a good day during the October 2014 examination and thus was able to move through range of motion testing much easier than normal. The VA examiner should provide a complete rationale for any opinions provided. A complete explanation must be provided for all opinions given. If the examiner cannot provide an opinion without resorting to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. If any opinion cannot be rendered without resorting to speculation, the examiner should so state and explain the reasons why the opinion cannot be given. (continued on the next page) 2. Upon completion of the above requested development and any additional development deemed appropriate, the AOJ should readjudicate the remanded issue. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.S. Willie 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.