Citation Nr: 21068452 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 13-06 329 DATE: November 10, 2021 REMANDED Entitlement to an initial compensable rating for limitation of flexion due to right knee arthritis is remanded. REASONS FOR REMAND The Veteran served on active duty from February to September 1988. This appeal to the Board of Veterans' Appeals (Board) is from a November 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A February 2018 decision of this Board since issued denied this claim and, in response, the Veteran appealed to the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC). In an August 2018 Order, the Court granted a Joint Motion for Remand (JMR) filed by the contesting parties, vacating the Board's decision denying this claim and remanding it back to the Board for action consistent with the terms of the JMR. In March 2019, after receiving this claim back from the Court, the Board, in turn, remanded this claim back to the RO (Agency of Original Jurisdiction (AOJ)) to comply with the Court's Order, specifically, for a needed VA medical opinion. In a subsequent August 2020 decision, the Board again denied this claim, and in response the Veteran again appealed to the Court (CAVC). The Court granted another JMR in July 2021, vacating the Board's most recent decision denying this claim and again remanding it back to the Board for further development and readjudication pursuant to agreement in the JMR. To comply with the Court-granted JMR, the Board, in turn, is again remanding this claim back to the RO (AOJ). Entitlement to an initial compensable rating for limitation of flexion due to right knee arthritis is again remanded. Historically, pursuant to the initial August 2018 JMR, the Board remanded this claim back to the RO (AOJ) for an opinion (or estimate) regarding the degree of functional loss the Veteran has during flare-ups and immediately after repeated use of this knee over time. An addendum VA medical opinion consequently was provided concerning this in December 2019. The examiner explained that the Veteran's subjective complaints of intermittent right knee pain that increases over time when walking, standing, running, squatting, and kneeling do not fulfill the criteria to be considered a flare-up. But in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. The Court also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. In this case, the examiner appeared to find that he was unable to address the functional effect of the Veteran's flare ups because his flare-up events were inconsistent with a certain definition for flare ups. However, this explanation is inadequate under Sharp, so still more comment is needed. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, this claim is again REMANDED for the following still additional development and consideration: Have the Veteran reexamined to determine whether, and to what extent, he has functional loss due to pain and/or any other symptoms during flare-ups and/or with prolonged or repeated use of his right knee. To this end, to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. In this regard, even if the Veteran is not experiencing a flare-up at the time of the examination, the examiner must elicit relevant information as to the Veteran's flares or ask him to describe the additional functional loss, if any, he suffers during flares and then estimate his functional loss due to flares based on all the evidence of record relevant to this determination including the Veteran's lay statements or explain why the examiner cannot do so. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Poindexter 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.