Citation Nr: 21072147 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-50 196 DATE: December 2, 2021 REMANDED The claim of entitlement to a disability rating in excess of 10 percent for right knee instability and osteoarthritis is remanded. The claim of entitlement to a disability rating in excess of 10 percent for right knee limitation of extension is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from August 1999 to March 2007. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, decreased the Veteran's disability rating for right knee instability and osteoarthritis from 20 to 10 percent disabling effective April 21, 2015 but also granted a separate 10 percent disability rating for right knee limitation of extension, also effective April 21, 2015. The Veteran disagreed with this decision and perfected this appeal. In June 2020, the Board took jurisdiction of the issue concerning whether the reduction in disability rating for right knee instability and osteoarthritis from 20 percent to 10 percent, effective April 21, 2015, was proper pursuant to Manlincon v. West, 12 Vet. App. 238, 240-41 (1999) and remanded this issue along with the issues regarding increased ratings for the right knee disability for further development. Notably, while the Veteran was provided with a statement of the case pertaining to the reduction issue in June 2020, he did not perfect an appeal of this issue. As such, this issue is no longer for consideration. The claims of entitlement to disability ratings in excess of 10 percent for right knee instability and osteoarthritis and in excess of 10 percent for right knee limitation of extension are remanded. As was noted in the June 2020 Board remand, during an August 2017 VA knee examination, the Veteran reported that he experiences daily flare-ups in his right knee which causes pain and affect his range of motion. While the examiner found that pain limits the Veteran's right knee range of motion, he did not opine as to whether pain, weakness, fatigability or incoordination significantly limit functional ability during right knee flare-ups, nor did he provide estimated range of motion loss regarding the Veteran's reported right knee flare-ups, stating that to do so would be speculative, as the examination was not conducted during a flare-up. However, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. As such, the Board found the August 2017 VA knee examination report to be inadequate to evaluate the Veteran's right knee disabilities, as it does not offer an opinion as to range of motion loss during right knee flare-ups. For this reason, the Board remanded the claim for a new VA examination that complies with Sharp. Pursuant to the June 2020 Board remand, the Veteran was afforded another VA knee examination in June 2020. Unfortunately, the Board finds that the June 2020 VA knee examination is also inadequate. Initially, while the Veteran continued to endorse flare-ups of the right knee during the June 2020 VA examination along with allegations of functional impairment, the examiner appears to dismiss such complaints of functional impairment in finding that neither pain, pain, weakness, fatigability nor incoordination significantly limits functional ability with flare-ups. Significantly, during the August 2017 VA examination, the Veteran reported that, during flare-ups, it was hard to move his right knee. Furthermore, an April 2020 disability benefits questionnaire from Dr. M.D. shows that the Veteran does experience significant loss of motion of the right knee during flare-ups (from 110 degrees of flexion without a flare-up to 30 degrees of flexion during a flare-up). As such, the June 2020 VA examination also does not comply with Sharp. Furthermore, the June 2020 VA knee examiner noted that there was no history of and no current evidence of instability of the right knee. However, previous VA knee examinations dated in April 2015 and August 2017 do show mild instability of the right knee. Also, the April 2020 disability benefits questionnaire from Dr. D.M. shows moderate instability of the right knee. Moreover, during the June 2020 VA knee examination, the examiner found that there was no evidence of pain when the right knee was used in non-weight bearing. However, the examiner failed to note whether the Veteran experienced pain with weight bearing for his right knee. Notably, in Correia v. McDonald. 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) determined that the final sentence of 38 C.F.R. § 4.59 requires VA examinations to 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 of the opposite undamaged joint. Id. As such, the Board finds that the June 2020 VA examination does not comply with Correia. Given the inadequacies in the June 2020 VA examination, as well as the conflicting findings when comparing the June 2020 VA examination to the April 2020 disability benefits questionnaire, the Veteran should be afforded a new VA knee examination to ascertain the severity of the Veteran's right knee disability. While on remand, the Veteran should be provided with an opportunity to identify any VA or non-VA healthcare provider who has treated him for his right knee disability. Furthermore, there are likely outstanding treatment records as the most recent VA treatment records are dated in November 2020. Therefore, any outstanding records identified by the Veteran, to include VA treatment records dated since November 2020, should be obtained on remand. The matters are REMANDED for the following action: 1. Afford the Veteran an opportunity to identify any healthcare provider who has treated him for his right knee disorder during the appeal period. After obtaining any necessary authorization from the Veteran, obtain any identified records, to include VA treatment records dated since November 2020. 2. After obtaining any outstanding records, to the extent possible, schedule the Veteran for a VA knees examination for evaluation of the current nature of his service-connected right knee disability. The examiner should test the range of motion (using a goniometer) in active motion, passive motion, weight-bearing, and non weight-bearing, for each knee. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, (e.g., feasibility of testing the spine in weight-bearing) he or she should clearly explain why that is so. The VA examiner should also ask the Veteran for a description of his flare ups, and express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. In doing so, the examiner should note the findings in the April 2020 disability benefits questionnaire from Dr. M.D. showing that the Veteran does experience significant loss of motion of the right knee during flare-ups (from 110 degrees of flexion without a flare-up to 30 degrees of flexion during a flare-up). Finally, the examiner should weigh the April 2015/ August 2017 VA examination reports as well as the April 2020 disability benefits questionnaire showing instability of the right knee with the June 2020 VA examination report showing no instability. APRIL MADDOX Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. L. Park, 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.