Citation Nr: 21069601 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 18-50 214 DATE: November 19, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for a service-connected left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1985 to April 1998. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2019 rating decision which denied increased rating claims for the Veteran's left knee and right knee. In his October 2018 formal appeal, the Veteran sought review of the matter of entitlement to a disability rating in excess of 10 percent for a service-connected left knee disability only. Entitlement to a disability rating in excess of 10 percent for a service-connected left knee disability is remanded. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the remaining claims. 38 U.S.C. § 5103; 38 C.F.R. § 3.159. When the Secretary undertakes to provide a veteran with a VA medical examination or opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A VA joints examination that fails to take into account the factors listed in §§ 4.40 and 4.45, including those experienced during flare-ups or on repeated use over time, is inadequate for evaluation purposes. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). For an examination not conducted during a flare-up or after repeated use over time to comply with DeLuca, the examiner must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veteran, and offer an opinion based on an estimate derived from information procured from relevant sources, including the lay statements of the veteran. Sharp v. Shulkin, 29 Vet. App. 26, 34-35 (2017). The examiner's determination in that regard should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss. DeLuca, 8 Vet. App. at 206. When an examiner states that he or she cannot offer an opinion without resort to speculation, that opinion is adequate only when it is clear that it 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)). The Veteran was most recently provided a VA examination in February 2018, more than three years ago. The examination does not fully comport with the requirements of Sharp and DeLuca and therefore is inadequate for rating purposes. Thus, at present, none of the medical evidence of record may fully satisfy the requirements of Sharp and DeLuca and 38 C.F.R. § 4.59. Accordingly, a new VA examination is necessary. Moreover, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). Also, when again rating the Veteran's disability the RO should be mindful of the fact that controlling laws and regulations also allow separate knee ratings for knee arthritis and instability as well as for lost knee flexion and extension. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994); VAOPGCPREC 9-2004; 69 Fed. Reg. 59990 (2004); VAOPGCPREC 23-97 (July 1, 1997). While the appeal is in Remand status any outstanding VA and private treatment records should also be obtained and associated with the record. See 38 U.S.C. § 5103A(b). The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to assess the current severity of his service-connected right and left knee disabilities, to include any functional effects. The Veteran's claims file should be made available to and reviewed by the examiner, and he or she must indicate whether such review was accomplished. The examiner should determine the range of motion of the Veteran's left knee in degrees. Range of motion testing must include both passive and active motion, and in weight-bearing and nonweight-bearing conditions, and the range of the opposite undamaged joint. It should be indicated whether and at what point during the Veteran's range of motion he experiences any limitation of motion that is specifically attributable to pain. Further, the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use, weakened movement, excess fatigability, or incoordination should be indicated. If the Veteran endorses flare-ups of symptoms the examiner must comment on the functional limitations of the right and/or left knee during flare-ups, and the effect of pain on range of motion. If there is no flare-up at the time of the examination, the examiner is asked to opine on further functional limitations based on the Veteran's subjective complaints and history. 2. If the requested opinions and measurements cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Woehlke 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.