Citation Nr: 21069994 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 16-08 894 DATE: November 22, 2021 REMANDED Entitlement to a rating in excess of 20 percent for service-connected left knee condition is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from December 1987 to January 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision issued by a Department of Veterans Affairs (VA) regional office. This matter was previously remanded by the Board in September 2018 and February 2021. In April 2018, the Veteran testified via video conference before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the electronic claims file. See April 2018 Board Hearing Transcript. Entitlement to a rating in excess of 20 percent for service-connected left knee condition is remanded. The Board regrets the delay associated with this remand, particularly as this matter has been the subject of a prior remand. However, based on a review of the evidence of record, the Board finds that another remand is necessary as the Agency of Original Jurisdiction (AOJ) has not substantially complied with the February 2021 remand directives. See Stegall v. West, 11 Vet. App. 258, 271 (1998). Specifically, in February 2021, the Board instructed the AOJ to afford the Veteran with an examination regarding the severity of his service-connected left knee condition. As part of this examination, the examiner was asked to provide a retrospective opinion, utilizing the Veteran's medical records and lay history, as to the severity of the Veteran's left knee condition from January 2010 to current. In May 2021, the Veteran was afforded a VA examination regarding his left knee condition. However, the examiner did not provide a retrospective opinion, nor was an explanation provided as to why such an opinion could not be rendered. See May 2021 VA Knee and Lower Leg Disability Benefits Questionnaire (DBQ). As the Board cannot find substantial compliance with the February 2021 remand directives, a remand is necessary to allow the AOJ to obtain a RETROSPECTIVE OPINION regarding the severity of the Veteran's left knee condition from January 2010 to current. Even if the Board could find substantial compliance with the February 2021 remand directives, in light of Sharp v. Shulkin, 29 Vet. App. 26 (2017), a remand would nonetheless be necessary to afford the Veteran with an adequate examination regarding the severity of his left knee condition. In Sharp, the Court held that, pursuant to VA regulations and the VA Clinician's Guide, when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire whether there are periods of flare-ups and, if the answer is yes, to state their severity, frequency, and duration, name the precipitating and alleviating factors, and estimate, per the veteran, to what extent, if any, flare-ups and repetitive use over time affect functional loss. Sharp, 29 Vet. App. at 26. Further, VA examiners are expected to offer opinions on functional loss that would occur during flare-ups and repetitive use over time based on estimates derived from relevant sources, including the Veteran's lay statements. Id. at 34. In May 2021, the Veteran was afforded a VA examination in which the Veteran reported experiencing flare-ups of his left knee condition; no information regarding the severity, duration, or frequency of such flare-ups was noted. Additionally, though the examiner noted that pain, fatigability, and lack of endurance would significantly limit functional ability with repeated use over time and during flare-ups, the examiner declined to express such functional loss in terms of range of motion (ROM), stating that the Veteran did not report specific losses of ROM in a particular plane and that his current ROM was described within the DBQ. Importantly, the examiner noted that the examination did not occur during a flare-up or following repetitive use over time. See May 2021 VA Knee and Lower Leg DBQ. As the May 2021 examination did not fully satisfy the requirements of 38 C.F.R. § 4.60 or Sharp, the Board finds the examination to be inadequate for ratings purposes and, therefore, a remand is necessary to afford the Veteran with an adequate examination regarding the severity of his service-connected left knee condition. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the matter is REMANDED for the following action: 1. With the Veteran's assistance as appropriate, obtain and associate with the claims file any pertinent outstanding medical records, whether VA or private, to include records relating to treatment at Columbus VA Medical Center from June 2021 to current. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any of these records are unable to be secured. 2. After completing the development above, and any additional development warranted by the record, schedule the Veteran for an examination with an appropriate clinician to ascertain the current nature and severity of his service-connected left knee condition. The entire claims file must be provided to, and reviewed by, the examiner, and any indicated tests, studies, or evaluations should be performed. The examiner is asked to: (a.) Obtain the Veteran's detailed lay history, including onset and progression of symptomatology. If the Veteran describes flare-ups, document the Frequency, Severity, and Duration thereof. (b.) Test and document the range of motion (ROM) for the Veteran's left knee in active motion, passive motion, on weight-bearing, and non-weight-bearing, on both an initial and after repetitive use basis. The examiner must also conduct the same testing for the right knee. FOR EACH ROM, THE EXAMINER IS ASKED TO EXPLICITLY IDENTIFY THE DEGREE IN WHICH PAIN IS FIRST EVIDENCED BY THE VETERAN'S VISIBLE BEHAVIOR. (c.) Identify the nature and severity of all current manifestations of the Veteran's service-connected left knee condition. The extent of any weakened movement, excess fatigability, and incoordination should be described. Any additional impairment due to such should be assessed in terms of the degree of additional ROM loss. Additional limitation following repetitive use over time, if any, must also be noted. (d.) If the Veteran describes flare-ups, after documenting the frequency, severity, and duration thereof, express an opinion as to whether there would be additional functional impairment during such flare-ups. The examiner should assess such impairment in terms of the degree of additional ROM loss and provide an explanation as to how such was determined. (e.) Provide a RETROSPECTIVE OPINION, utilizing the Veteran's medical records and lay history, and opine as to the severity of the Veteran's service-connected left knee condition from January 2010 to current. Any impairment, and any additional impairment due to repetitive use over time or flare-ups, should be assessed in terms of limitation to ROM, if possible. (f.) In formulating the requested Retrospective Opinion, the examiner is instructed to consider and specifically address: i. The March 2011 examination report's notation that the Veteran experienced severe flare-ups, manifesting with stiffness, popping, and locking on a daily basis, and manifesting with swelling up to three times per week; ii. The June 2014 examination report's notation that the Veteran experienced flare-ups, manifesting with swelling, pain, and occasional giving out with physical activities; and iii. The October 2019 examination report's notation that repeated use over time and flare-ups resulted in an additional loss of ROM of 50 percent. If it is not feasible to perform a requested assessment to any degree of medical certainty without resort to speculation, a thorough explanation as to why the assessment cannot be performed should be provided. Any opinion expressed by the examiner must be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to render any opinion requested herein, the examiner must specifically state why and provide a rationale for the determination. The examiner is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. 3. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. (Continued on following page) If any report or opinion does not include adequate responses to specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Martin III, 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.