Citation Nr: 21063727 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 18-01 936 DATE: October 15, 2021 REMANDED Entitlement to a rating for right knee patellofemoral syndrome (right knee disability) in excess of 20 percent from December 1, 2014, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from November 1994 to November 2014. This matter comes before the Board of Veterans' Appeals (Board) from a November 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Board denied entitlement to a rating in excess of 10 percent for a right knee disability prior to April 26, 2018, and granted entitlement to a rating of 20 percent for a right knee disability thereafter. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2020 Order, the Court granted a Joint Motion for Remand (JMR) submitted by the Veteran and the Secretary of VA (Parties), vacated the March 2019 Board decision, and remanded the matter to the Board for compliance with the JMR instructions. The Parties agreed that remand was warranted because the Board erred by "failing to provide an adequate statement of reasons or bases, and by failing to ensure compliance with VA's duty to assist." See JMR at 1. Specifically, the Parties agreed that the Board failed to consider evidence from July 2014 showing onset of a meniscus injury and that the September 2016 VA examination was inadequate for failure to consider this evidence. See JMR at 1-2. The Parties agreed that remand was warranted for the Board to determine whether a separate rating for residuals of the right knee meniscal injury was warranted prior to April 2018. See JMR at 2. In September 2020, the Board remanded the matter for further development. In May 2021, the RO granted a rating of 20 percent for the right knee meniscal injury throughout the entire appeal period after changing the Veteran's Diagnostic Code (DC) from 5024-5260 to 5258. This is the maximum rating allowed under DC 5258. Accordingly, the JMR's instructions regarding the meniscal injury are moot as the Veteran is in receipt of the maximum rating for that condition. However, the Board emphasizes that it must still consider whether separate ratings are warranted under alternative DCs. The Parties additionally agreed that the October 2018 VA examination was inadequate for failure to "adequately address [the Veteran's] reports of functional loss." See JMR at 2. In this regard, the Parties agreed that the examiner "failed to indicate at what point during the range of motion [the Veteran] first experienced pain." Id. at 3. The Parties additionally agreed that the examiner's statement regarding functional loss due to flare-ups failed to comply with Sharp in that the examiner's rationale was that there was "no conceptual or empirical data to provide such an opinion without directly observing [the Veteran's] knee during a flare-up." Id. In September 2020, the Board remanded the matter for a new VA examination and for a Sharp-compliant opinion addressing functional loss due to flare-ups. An examination was obtained in May 2021. The examiner provided no opinion on functional loss due to flare-ups. Rather, the examiner indicated that the Veteran denied flare-ups. However, the Veteran reported flare-ups at the October 2018 and December 2014 VA examinations. Furthermore, in the March 2020 JMR the Court remanded the matter to the Board to obtain a Sharp-compliant opinion addressing functional loss due to flare-ups and no such opinion has been obtained yet. Stegall v. West, 11 Vet. App. 268 (1998). Thus, although the Board regrets causing yet another delay to this case, remand is unfortunately necessary again in order to comply with the March 2020 JMR instructions. In so doing, the examiner must address the Veteran's concern that examinations have been scheduled during the 5 percent of time when his knee is "tolerable." See June 2021 Correspondence. Updated VA and private treatment records should also be obtained. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding pertinent private treatment records. 3. Then obtain an addendum opinion from an examiner other than the December 2014, October 2018 and May 2021 examiners, to determine the nature of the Veteran's right knee disability during a flare-up. The claims file should be made available to the examiner. No additional examination of the Veteran is necessary, unless the examiner indicates otherwise. Following a review of the claims file, to include the December 2014 and October 2018 VA examination report, the Veteran's June 2021 correspondence noting that examinations have been scheduled during times when his knee was "tolerable," and his description of flare-ups therein, the examiner should provide an opinion describing functional impairments of the Veteran's right knee due to flare-ups, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. If unable to provide such an opinion without resorting to speculation, please 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 (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). Noting that the Veteran was not examined during a flare-up will not suffice. A complete rationale shall be given for all opinions and conclusions expressed. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. deBruyn, Associate 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.