Citation Nr: 21069649 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 12-15 701 DATE: November 19, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for postoperative residuals of left lateral retinaculum release based on limitation of flexion is remanded. Entitlement to a separate disability rating in excess of 10 percent for postoperative residuals of left lateral retinaculum release based on limitation of extension for the period from December 29, 2015, to February 20, 2018, is remanded. REASONS FOR REMAND The Veteran had active service in the United States Air Force from March 1984 to March 1994. These matters come to the Board of Veterans' Appeals (the Board) following a July 2009 rating decision in which the Agency of Original Jurisdiction (AOJ) denied entitlement to a rating in excess of 10 percent for postoperative residuals of left lateral retinaculum release based on limitation of flexion. In September 2020, the Board issued a decision denying entitlement to a rating in excess of 10 percent for postoperative residuals of left lateral retinaculum release based on limitation of flexion. At the same time, the Board also assigned a separate disability rating of 10 percent for postoperative residuals of left lateral retinaculum release based on limitation of extension for the period from December 29, 2015, to February 20, 2018, as well as a separate 10 percent disability rating based on symptomatic removal of semilunar cartilage from February 13, 2015, to the present. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (the Court). In a July 2021 Order, the Court entered a Joint Motion for Partial Remand (JMPR) of the parties. This Order vacated and remanded the portion of the Board's September 2020 decision that denied entitlement to a rating in excess of 10 percent for postoperative residuals of left lateral retinaculum release based on limitation of flexion and a rating in excess of 10 percent for postoperative residuals of left lateral retinaculum release based on limitation of extension for the period from December 29, 2015, to February 20, 2018. In the JMPR, the parties agreed that the Board erred in relying on a series of inadequate Department of Veterans Affairs (VA) examinations when it denied ratings in excess of 10 percent for the Veteran's left knee disability based on limitation of flexion and extension. First, the parties determined that the June 2015, December 2015, and March 2020 VA examinations were inadequate under DeLuca v. Brown, 8 Vet. App. 202 (1995), and Mitchell v. Shinseki, 25 Vet. App. 32 (2011). During these examinations, the examiners noted that the Veteran experienced pain on motion but failed to indicate where pain began on range-of-motion testing. See DeLuca, 8 Vet. App. at 206. Second, the JMPR concluded that the April 2012, June 2015, and February 2018 VA examinations were also inadequate under Sharp v. Shulkin, 29 Vet. App. 26 (2017), and Jones v. Shinseki, 23 Vet. App. 382 (2010). During the April 2012, June 2015, and February 2018 VA examinations, the Veteran reported experiencing flare-ups of the left knee. However, the examiners conducting these examinations did not estimate the degree of additional range-of-motion loss during flare-ups as required by Sharp. 29 Vet. App. at 32; see also Jones, 23 Vet. App. at 390. Furthermore, the Board concludes that a retrospective opinion that complies with the requirements of DeLuca and Sharp is needed to better ascertain the Veteran's disability picture throughout the period on appeal. As such, a retrospective examination should be undertaken to assess the severity of the Veteran's service-connected left knee disabilities throughout the entire period on appeal. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records, to include any outstanding VA treatment records dated after December 11, 2018. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected postoperative residuals of left lateral retinaculum release. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If there is pain on motion, the examiner must indicate where pain began on range-of-motion testing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Additionally, the examiner should provide a retrospective opinion, as best as can be ascertained from the Veteran's self-reports as well as from clinical records and other evidence, for the April 2012, June 2015, December 2015, February 2018, and March 2020 VA examinations. Based on the Veteran's statements and other evidence of record, the examiner is asked to provide an opinion estimating the degree at which pain began on range-of-motion testing at the time of the June 2015, December 2015, and March 2020 VA examinations. Additionally, the examiner should provide an opinion estimating the degree of additional range-of-motion loss during flare-ups at the time of the April 2012, June 2015, and February 2018 VA examinations. If it is not possible to provide specific measurements without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. A rationale must be provided for all opinions proffered. Jenna Brant Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M. Sachs, 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.