Citation Nr: 21069777 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 17-29 992 DATE: November 19, 2021 REMANDED Entitlement to a rating in excess of 10 percent for a right knee condition is remanded. Entitlement to a rating in excess of 10 percent for a left knee condition is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1974 to November 1979. The Board acknowledges that the Veteran was scheduled for videoconference hearings before a Veterans Law Judge on two occasions, once in February 2021 and again in June 2021, that were rescheduled for various reasons unrelated to the Veteran's own conduct. That requested videoconference hearing was most recently scheduled for September 13, 2021 before a Veterans Law Judge at the Board. Internal memoranda reflect that the Veteran did not appear for the scheduled hearing, and he has not submitted any subsequent correspondence indicating his intention to seek a new hearing or providing VA with any explanation as to why he missed the scheduled hearing. Furthermore, the Board highlights that the Veteran's representative has submitted an informal hearing presentation in support of the claim after the missed hearing and did not suggest in that correspondence that the Veteran was seeking a new videoconference hearing. Under these circumstances, the Board finds that VA has fulfilled its duty to assist by providing the Veteran with sufficient opportunity to present testimony before a Veterans Law Judge in support of his claim. As such, it may proceed with its adjudication without prejudice to the Veteran. The Veteran was afforded a VA knee examination to evaluate the nature and severity of his bilateral knee conditions in April 2016, during which he reported that he experienced chronic bilateral knee pain that he treated with pain medication as well as regular injections at his local VA medical center. He also endorsed experiencing flare-ups of symptomatology weekly with weather changes. According to the Veteran, he experienced functional loss in the form of being unable to kneel or squat as well as being unable to stand more than a few minutes or walk more than a few feet at a time. Range of motion testing on the April 2016 examination revealed flexion reduced to 110 degrees bilaterally with no loss of extension, as well as pain with weight-bearing, bilateral knee tenderness, and crepitus. The examiner noted further that, after repetitive use testing with at least three repetitions, the Veteran did not exhibit any additional functional loss. When queried regarding the extent of any additional loss of range of motion during a flare-up, the examiner stated that he would have to resort to speculation in order to do so as the Veteran was not experiencing a flare-up at the time of the examination. Ultimately, the examiner found that, despite the reported functional limitations which did indeed result in some impairment of occupational functioning. the Veteran was not precluded from limited duty or sedentary employment. To begin, the Board highlights that the April 2016 examination is over five years old, and so a more contemporary evaluation of the severity of the bilateral knee conditions is warranted. Hart v. Mansfield, 21 Vet. App. 505, 508 (2007). That being said, the Board cannot otherwise rely on the April 2016 examination as the examiner did not set forth estimations as to any additional disability that may have arisen during the flare-ups reported by the Veteran. Consistent with Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017), where flare-ups of symptomatology are reported by a veteran, VA must make a determination as to any additional loss of function in the form of estimated range-of-motion testing results. As the examiner did not set forth the required estimated range-of-motion testing results, a remand is also necessary for this reason. The matters are REMANDED for the following action: Schedule the Veteran for a VA knee examination with a VA medical professional to evaluate the severity of the Veteran's bilateral knee conditions. All symptomatology experienced by the Veteran during the appeal period should be identified. In order to comply with Correia v. McDonald, 28 Vet. App. 158 (2016), the examiner must estimate the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing during the time period in question. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limited functional ability during flares or repetitive use, and, if so, the examiner must estimate what the range of motion was during flares or repetitive use. The examiner should specifically interview the Veteran about the nature of the flare-ups that he reported on the April 2016 VA knee examination, and then assess this impairment during flare-ups and provide both contemporary and retroactive opinions as to any additional functional loss during flare-ups at that time and an estimate of that loss in terms of degrees reduction in range of motion. If the examiner cannot provide the above-requested opinions without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran's description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time. The examiner must also consider whether the inability is due to the limits of medical community or the limits of the examiner's medical knowledge, and whether there is additional evidence, which, if obtained, would allow an opinion. The examiner shall review the entire claims file, to include all lay statements and include a copy of this REMAND in the examination report. All opinions and conclusions must be accompanied by a rationale. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Collins, 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.