Citation Nr: 21066730 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 14-09 861 DATE: November 2, 2021 REMANDED Entitlement to a rating in excess of 20 percent for residuals of a right knee injury (lateral moderate instability) is remanded. Entitlement to a rating in excess of 20 percent for residuals of a right knee injury (limitation of extension) is remanded. Entitlement to a compensable rating for scar of the right knee is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Army from June 1963 to March 1964. These issues come before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to a rating in excess of 20 percent for residuals of a right knee injury (lateral moderate instability). 2. Entitlement to a rating in excess of 20 percent for residuals of a right knee injury (limitation of extension). 3. Entitlement to a compensable rating for scar of the right knee. The Veteran contends that his right knee symptomology is worse than the ratings currently assigned. The Board notes that the Veteran was last afforded a VA examination in November 2019. The Board finds that remand is required to afford the Veteran a new VA examination. The United States Court of Appeals for Veterans Claims (the Court) has held that "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of" 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). The referenced portion of 38 C.F.R. § 4.59 states, as relevant, that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non weight-bearing." The November 2019 examination did not comply with Correia and as such, remand is required so that the Veteran may be afforded a new VA examination that contains adequate information. Specifically, while range of motion test results were reported, the examiner reported only active range of motion test results. They failed to report test results in passive range of motion, in weight bearing, and in non-weight bearing status. Therefore, the examination is inadequate and the Board must remand this matter for a new VA examination that complies with Correia to the extent possible. In addition, the VA examiner provided no estimates of limited ROM during periods of functional loss due to flare ups and/or repetitive use over time. No explanation was provided. However, the Board notes that the VA examination report contains numerous references to pain complaints. In addition, the Veteran has submitted lay statements detailing his right knee pain complaints and its impact of his ability to conduct activities of daily living. This information was not considered by the VA examiner when he rendered his opinions. With respect to any additional functional loss during flare-ups of musculoskeletal disability, a VA examiner should offer a flare-up opinion based on estimates derived from information procured from relevant sources, including lay (non-expert) statements. An examiner must do all that reasonably should be done to become informed before concluding that a requested opinion cannot be provided without resorting to speculation. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). In Sharp, the Court held a VA examination report to be inadequate because the examiner did not estimate the veteran's functional loss due to flare-ups based on all the evidence of record, including the veteran's lay information, or explain why she could not do so. The Court determined that VA can accept an examiner's statement that an opinion cannot be provided without resort to speculation, but "it must be clear that this is predicated on a lack of knowledge among the 'medical community at large' and not the insufficient knowledge of the specific examiner." Sharp, 29 Vet. App. at 36 (quoting Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)). In this case, the VA examiner did not provide sufficient information for the Board to accurately rate the disability on appeal. Therefore, the Board will remand for an additional examination and any information identified by the examiner as necessary for a non-speculative estimate of additional loss of ROM during a flare-up and with repeated use over time. 38 C.F.R. § 19.9 (a). 4. Entitlement to a TDIU due to service-connected disabilities. The Board remanded this matter in December 2020 to request that the Veteran submit a complete VA Form 21-8940, Application for Increased Compensation based on Unemployability. Specifically, the Board noted that while the Veteran, submitted such form in August 2018, he did not indicate when he stopped working and did not identify the complete dates of his employment. The Board found that if, following the readjudication of the Veteran's claims, he still did not meet the schedular threshold criteria for consideration of a TDIU and it was shown that he had not engaged in a substantially gainful occupation, then the matter should be submitted to the Director of Compensation Service for extra-schedular consideration, as the evidence demonstrated that his right knee disabilities would impair his ability for physical work that required prolonged standing, which was required of his work as a barber. 38 C.F.R. § 4.16 (b). A review of the claims file reveals that the Veteran submitted a complete VA Form 21-8940 in January 2021, stating that he last worked as a barber in March 2020. While the Veteran's right knee claims were readjudicated in a March 2021 Supplemental Statement of the Case, there has been no development on the TDIU claim, including any submission of this claim to the Director of Compensation Service for extra-schedular consideration. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that there has not been substantial compliance with its previous remand directives. As such, this matter must be remanded for additional development, including submission of the claim to the Director of Compensation Service for extra-schedular consideration. The matters are REMANDED for the following action: 1. Obtain updated VA and/or private treatment records to the extent possible. If such records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Schedule the Veteran for an examination to determine the current severity of his service-connected right knee disabilities. The evidence of record must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. All necessary testing should be conducted. In particular, the examination must include tests of all applicable ranges of motion in active motion, passive motion, weight-bearing, and non- weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. In addition, if the examination is not conducted during a flare-up, the examiner must attempt to ascertain information, such as frequency, duration, characteristics, severity, and functional loss (due to pain, weakness, fatigability, or incoordination) regarding any flare-ups by alternative means. The examiner must provide an estimate of functional loss in terms of range of motion based on the Veteran's statements, available medical records, and other relevant sources. In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. The examiner is not to improperly discount the Veteran's lay statements or rely solely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional 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(s). 3. Following the completion of the above development, if the Veteran does not meet the schedular criteria for a TDIU and he is not engaged in a substantially gainful occupation, his claim should be submitted to the Director of Compensation Service for consideration of a TDIU on an extra-schedular basis pursuant to 38 C.F.R. § 4.16 (b). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.T. Massey, 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.