Citation Nr: 21068599 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 17-49 019 DATE: November 10, 2021 REMANDED Entitlement to a disability rating in excess of 20 percent for a lumbosacral strain with left scoliosis is remanded. Entitlement to a disability rating in excess of 10 percent for a left knee strain is remanded. Entitlement to a disability rating in excess of 10 percent for a right knee strain is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1985 to April 1995. This matter comes to the Board of Veterans' Appeals (Board) from an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In February 2021, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of his testimony is associated with the claims file. 1. Entitlement to a disability rating in excess of 20 percent for a lumbosacral strain with left scoliosis is remanded. 2. Entitlement to a disability rating in excess of 10 percent for a left knee strain is remanded. 3. Entitlement to a disability rating in excess of 10 percent for a right knee strain is remanded. While the Board sincerely regrets further delay in this matter, additional development is required before the Veteran's claims may be adjudicated on the merits. New examinations are required in light of the evidence of worsening symptomatology. The Veteran received VA examinations in March 2014 and August 2017, however in his February 2021 Board hearing, the Veteran indicated continued worsening of this disabilities. During the Board hearing, the Veteran asserted that the March 2014 and August 2017 VA examiners disregarded his assertions of pain, and pushed him beyond his normal range of motion in order to reach the numbers the examiner wanted, ignoring the Veteran's complaints of pain. Additionally, the United States Court of Appeals for Veterans Claims (Court) holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017) also requires that the claim be remanded. In Sharp, the Court noted that for a joint examination to be adequate, the examiner "must express an opinion on whether pain could significantly limit" a veteran's functional ability, and that determination "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Furthermore, the Court stated that the examiner must "obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves." Sharp, 29 Vet. App. at 34. The examiner must also "offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans," and the examiner's determination "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Id. at 10. While flare-ups are noted on the Veteran's prior VA examinations, opinions with respect to the extent of functional impairment are not present and therefore, a retroactive opinion is warranted in light of Sharp. While the Board notes that the August 2017 VA examiner attempted to provide an opinion addressing the Court's holding in Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that in order for an examination to be adequate under Correia, it must include joint testing for pain on both active and passive motion, in weight bearing and non-weight bearing, and, if possible, with range of motion measurements. A review of the Veteran's VA examinations indicates that a retroactive opinion is also warranted in light of the Correia decision. The matters are REMANDED for the following action: 1. The Veteran must be afforded a VA examination, by a new VA examiner. The VA examiner shall the appropriate expertise to determine the severity of the Veteran's service-connected back disability and provide a retrospective opinion of the severity of the disability. The Veteran's entire claims file, to include a copy of this decision, should be made available to the examiner. Following a complete review of the record, the examiner is asked to provide the Veteran an examination. After the examination with the Veteran has been conducted, the examiner should provide the following opinions: a. Determine whether the Veteran's range of motion results from the March 2014 and August 2017 VA examinations 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. If the examiner is unable to provide the requested opinion in this case, he or she should clearly explain the basis for this decision. b. The examiner should also provide an opinion regarding the extent of the Veteran's functional loss as described in his March 2014 and August 2017 VA examinations, and his pertinent lay statements from the February 2021 Board hearing. To the examiner's best ability, the additional range of motion loss should be described in degrees based on that information. If the examiner is unable to provide an opinion on the subject, he or she should clearly explain the basis for this decision. The examiner is advised that the Veteran is competent to report injuries and symptoms, and his reports must be considered and discussed in formulating the requested opinions. If his reports are discounted, the examiner should provide an explanation for doing so. The Veteran's statements may not be discounted solely on the basis of the lack of confirmation in the medical records. A complete rationale for all opinions rendered must be provided. If the examiner cannot provide an opinion without resorting to speculation, he or she 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. 2. The Veteran must be afforded a VA examination, by a new VA examiner. The VA examiner shall the appropriate expertise to determine the severity of the Veteran's service-connected bilateral knee disabilities and provide a retrospective opinion of the severity of the disabilities. The Veteran's entire claims file, to include a copy of this decision, should be made available to the examiner. Following a complete review of the record, the examiner is asked to provide the Veteran an examination. After the examination with the Veteran has been conducted, the examiner should provide the following opinions: a. Determine whether the Veteran's range of motion results from the March 2014 and August 2017 VA examinations 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. If the examiner is unable to provide the requested opinion in this case, he or she should clearly explain the basis for this decision. b. The examiner should also provide an opinion regarding the extent of the Veteran's functional loss as described in his March 2014 and August 2017 VA examinations, and his pertinent lay statements from the February 2021 Board hearing. To the examiner's best ability, the additional range of motion loss should be described in degrees based on that information. If the examiner is unable to provide an opinion on the subject, he or she should clearly explain the basis for this decision. The examiner is advised that the Veteran is competent to report injuries and symptoms, and his reports must be considered and discussed in formulating the requested opinions. If his reports are discounted, the examiner should provide an explanation for doing so. The Veteran's statements may not be discounted solely on the basis of the lack of confirmation in the medical records. A complete rationale for all opinions rendered must be provided. If the examiner cannot provide an opinion without resorting to speculation, he or she 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. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. R. Montalvo, 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.