Citation Nr: 21072746 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 16-48 153 DATE: December 6, 2021 REMANDED Entitlement to a rating greater than 10 percent for right shoulder strain is remanded. Entitlement to a rating greater than 10 percent for pain and limitation of motion due to left knee patellofemoral syndrome is remanded. Entitlement to a rating greater than 10 percent for recurrent lateral instability due to left knee patellofemoral syndrome is remanded. Entitlement to a rating greater than 10 percent for pain and limitation of motion due to right knee patellofemoral syndrome is remanded. Entitlement to a rating greater than 10 percent from June 17, 2010 through January 27, 2016, and a compensable rating from January 28, 2016, for recurrent lateral instability due to right knee patellofemoral syndrome is remanded. REASONS FOR REMAND The Veteran served on active duty from October 2003 to October 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2011, September 2012, and September 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Board denied entitlement to increased ratings for right shoulder strain, pain and limitation of motion due to left knee patellofemoral syndrome, and recurrent lateral instability due to right knee patellofemoral syndrome. The Board granted a 10 percent rating for recurrent lateral instability due to left knee patellofemoral syndrome and pain and limitation of motion due to right knee patellofemoral syndrome. The Veteran appealed these findings to the Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Partial Remand (JMPR), in October 2018, the Court vacated the Board's decision to deny higher ratings for right shoulder strain, pain and limitation of motion due to left knee patellofemoral syndrome, and recurrent lateral instability due to right knee patellofemoral syndrome. The Court also vacated the decision in so far as it denied entitlement to ratings higher than 10 percent for recurrent lateral instability due to left knee patellofemoral syndrome and pain and limitation of motion due to right knee patellofemoral syndrome. The Court remanded these issues for further development consistent with the JMPR. In the JMPR, the parties agreed that the Board erred in relying on VA examinations from August 2010 relating to the knees and shoulder; September 2011, relating to the shoulder; April 2012, relating to the knees and shoulder; and January 2016, relating to the knees and shoulder, because the examination reports did not comply with the Court's holdings in Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017). Specifically, the JMPR states that the examiners failed to address the functional impact experienced during a flare-up or failed to provide sufficient rationale for the inability to provide such an estimation. As such, the parties to the JMPR agreed that the Board should remand these matters for examinations. 1. Entitlement to a rating greater than 10 percent for right shoulder strain is remanded. 2. Entitlement to a rating greater than 10 percent for pain and limitation of motion due to left knee patellofemoral syndrome is remanded. 3. Entitlement to a rating greater than 10 percent for recurrent lateral instability due to left knee patellofemoral syndrome is remanded. 4. Entitlement to a rating greater than 10 percent for pain and limitation of motion due to right knee patellofemoral syndrome is remanded. 5. Entitlement to a rating greater than 10 percent from June 17, 2010 through January 27, 2016, and a compensable rating from January 28, 2016, for recurrent lateral instability due to right knee patellofemoral syndrome is remanded. Unfortunately, the Board finds that further AOJ action on the claim on appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall, 11 Vet. App. at 271. Subsequent to the Court JMPR, the Board remanded the appeal in an April 2020 and requested another VA examination of the Veteran, and asked that the examiner indicate whether, and to what extent, the Veteran experienced functional loss due to pain, weakness, excess fatigability, and/or incoordination, during flare-ups and/or with repeated use, expressing, to the extent possible, such additional functional loss in terms of additional degrees of limited motion. The Board also asked that the examiner provide a retrospective opinion on whether, and to what extent, the Veteran experienced functional loss due to pain, weakness, excess fatigability, and/or incoordination, during flare-ups and/or with repeated use, expressing, to the extent possible, such additional functional loss in terms of additional degrees of limited motion, with due consideration to Sharp v. Shulkin. Notably, in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the Court held that an examiner must describe the frequency, duration, characteristics, severity, and functional loss during flare-ups regardless of whether the Veteran is experiencing a flare-up at the time of the examination. The Court also held that the information should be elicited from the Veteran In Sharp, the Court held that the Board may accept a VA examiner's assertion that he or she cannot offer such an opinion without resort to speculation only after it determines that the examiner's conclusion is not based on the absence of procurable information or on a particular examiner's shortcomings or general aversion to offering an opinion on issues not directly observed. It must be clear that such an opinion is not procurable based on a lack of knowledge among the medical community at large and not merely on a lack of expertise, insufficient information, or unprocured testing on the part of the specific examiner. Here, regarding the right shoulder disability, the August 2021 examiner noted the Veteran's reported "flare-ups of the right shoulder occur several times a week. The right shoulder flare-ups are severe. The right shoulder flare-ups last hours to days. The right shoulder flare-ups are precipitated by work-life lifting repetitive motion. The right shoulder flare-ups are alleviated by acupuncture and physical therapy, Biofreeze." The examiner noted that the examination was not being conducted during a flare-up but that pain, fatigue, and weakness limited the functional ability with flare-up which resulted in diminished performance in some activities. Here, the examiner failed to reconcile the Veteran's reports of flare-ups and his findings as to frequency, duration, characteristics, severity, or functional loss during his flare ups and after repeated use, as requested. Regarding the Board's directive for retrospective opinions for the right shoulder and bilateral knee disabilities, which would address the requirements of Sharp, the examiner did not provide a retrospective opinion and stated Due to the gap in time, the current exam shows the flare-up of the shoulder and knee. Due to not being the past examiner, and last exams span over 10 years can have different signs/symptoms. Therefore, it will be mere speculation to support the past flare-ups on the past C&P exam 8/2010, 9/2011, 4/2012, or 1/2016. However, the examiner did not elicit any information from the Veteran related to his flare-ups over time, as requested in the April 2020 Board Remand. Here, the examiner failed to obtain and consider adequate information as to frequency, duration, characteristics, severity, or functional loss during his flare ups and after repeated use throughout the period on appeal, as requested. Further, the examiner also did not estimate additional loss of range of motion due to functional loss during flare-ups as requested. Additionally, the examiner also did not provide any explanation for why he could not obtain an estimated additional loss of range of motion from the Veteran, to comply with Sharp, as requested by the Board. Given the above, the Board finds that another remand of the increased rating claim is warranted for another medical examination of the Veteran to obtain adequate clinical findings responsive to the prior remand directives and the considerations addressed in Sharp. See 38 C.F.R. § 4.2; Stegall, supra. Unfortunately, as detailed above, there has not been substantial compliance with the Board's previous remand directives regarding the issues on appeal. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right shoulder, right knee and left knee disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disabilities 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. The examiner must 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. The VA examiner should not only assess the degree of any bilateral knee lateral instability found on examination, but should also elicit from the Veteran a complete description of the instability experience in daily life; thereafter, the VA examiner should provide an opinion as to whether such reported instability is consistent with the objective manifestations of such found on examination, and provide a rationale for any distinction in the objective assessment from the reported symptoms. A retrospective medical opinion should also be obtained addressing the severity of the Veteran's right shoulder and bilateral knee disabilities from August 2010. The examiner is asked to determine whether the Veteran's range of motion results from the VA examinations of August 2010 relating to the knees and shoulder; September 2011, relating to the shoulder; April 2012, relating to the knees and shoulder; and January 2016, relating to the knees and shoulder due to flare-ups would have been reduced based on the severity, frequency, and duration of any flare-ups, and the degree of functional loss, to specifically include estimations provided by the Veteran. To the examiner's best ability, the additional range of motion lost should be described in degrees. As the examiner must provide a retrospective opinion, the examiner will necessarily be unable to observe the Veteran during a flare-up. Nonetheless, to the extent possible, the examiner should still provide an opinion regarding the extent of the Veteran's functional loss during flare-ups as described in his August 2010, September 2011, April 2012, and January 2016 VA examinations, and his pertinent lay statements. To the examiner's best ability, the examiner should elicit information from the Veteran on his range of motion limitations during flare-ups over the course of his disabilities. The additional range of motion lost should be described in degrees based on that information. If it is not possible to provide the requested opinions 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. After all development has been completed, then readjudicate the claims. If any benefit on appeal remains denied, then issue the Veteran and his representative a supplemental statement of the case and allow an appropriate period for response before returning the claims to the Board. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael J. O'Connor, 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.