Citation Nr: 21068261 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 17-48 195 DATE: November 9, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for service-connected left knee degenerative arthritis is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from August 1988 to July 1996. This matter comes before the Board of Veterans' Appeals (Board) from a March 2015 rating decision by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In April 2019, the Board, in relevant part, denied entitlement to an initial rating in excess of 10 percent for left knee degenerative arthritis. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2020 Order, the Court granted a Joint Motion for Partial Remand (JMPR) submitted by the Veteran and the Secretary of VA (Parties), vacated the April 2019 Board decision with respect to an increased rating for left knee degenerative arthritis, and remanded the matter for compliance with the JMPR instructions. The Parties agreed that vacatur and remand were warranted because the Board erred by relying on two inadequate examinations in denying the Veteran's claim for an increased rating for left knee degenerative arthritis. JMPR at 6-8. Specifically, the Parties agreed that the March 2015 and May 2017 VA knee examinations failed to comply with Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017), in that they failed to adequately address the Veteran's reports of flare-ups and the functional impact of flare-ups. Id. The Parties agreed that remand was warranted to afford the Veteran "a new VA examination that adequately addresses the requirements detailed in Sharp." Id. at 8. On February 12, 2020, one week before the JMPR was issued, the Veteran underwent a VA examination addressing her knees. Following issuance of the JMPR, the case returned to the Board and in October 2020 the Board remanded for the AOJ to obtain a Sharp-compliant VA knee examination. The Board did not address the February 2020 VA knee examination in its decision. An additional VA knee examination was obtained in January 2021. The case returned to the Board and in April 2021 the Board remanded again for an adequate knee examination, finding both the February 2020 and January 2021 examinations inadequate for rating purposes. Knee examinations were again obtained in August 2021 and October 2021. Notably, no Supplemental Statement of the Case was issued after the relevant October 2021 VA examination, requiring remand. Moreover, VA has yet to obtain a knee examination that adequately addresses Sharp requirements since the February 2020 JMPR. As noted above, the Board found both the February 2020 and January 2021 knee examinations inadequate and remanded for "a medical opinion regarding whether pain, fatiguability, weakness, lack of endurance, or incoordination cause additional functional loss during flare-ups and with repeated use over time." See April 2021 Board decision at 7 (citing Sharp, 29 Vet. App. at 35). Knee examinations were then obtained in August 2021 and October 2021. The August 2021 examination is inadequate because the examiner noted that the Veteran reported additional functional loss due to flare-ups and repeated use over time, but also checked the box indicating that there was no evidence suggesting that "pain, fatigability, weakness, lack of endurance, or incoordination [] significantly limits functional ability" with repeated use over time or flare-ups. An addendum examination was requested and obtained in October 2021. The October 2021 examiner noted that initial flexion was 130 degrees and repeated use over time and flare-ups cause an additional loss of 5 degrees. However, the examiner failed to "cite and discuss evidence" as requested on the examination form. Considering the severity of the Veteran's reports of functional loss due to flare-ups and repeated use over time, the Board finds that only 5 degrees of motion loss should be reconsidered by the examiner or justified by a discussion of evidence as requested on the form. Furthermore, the examiner should offer an opinion reconciling her findings with the February 2020 examination that noted 75 degrees of flexion. Updated VA and private treatment records should also be secured. 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 the October 2021 examiner, if available, and if not, another clinician. A new examination is not necessary unless indicated by the examiner. If the examiner believes that a fully-informed opinion cannot be rendered without a new examination, the examiner must so state and a new examination must be scheduled. The entire claims file must be made available to and reviewed by the examiner. After reviewing the claims file, the examiner is asked to: Cite and discuss evidence supporting the finding in the October 2021 knee examination report that flare-ups and repeated use over time caused only 5 additional degrees of loss of motion in the left knee, to 125 degrees. The examiner must consider the Veteran's reports of flare-ups and functional loss of the left knee noted in that examination report, as well as in the other relevant VA examination reports and any other relevant evidence of record, and discuss how this evidence supports a finding of only a loss of 5 degrees of motion during flare-ups and on repetitive use. In so doing, the examiner should consider the range of motion measurement of 130 degrees of flexion noted in the October 2021 examination with the measurement of 75 degrees of flexion noted in the February 2020 examination, and the fact that the October 2021 flare-up estimate was only to 125 degrees, given the same. If a new estimate is warranted based on this review, such should be offered. Please provide a robust rationale for all opinions. If unable to opine without resorting to speculation, the examiner must provide a basis for reaching this conclusion. 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.