Citation Nr: 21074430 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 11-28 391 DATE: December 15, 2021 REMANDED Entitlement to an increased rating in excess of 10 percent prior to February 28, 2011 for a right knee disability is remanded. Entitlement to an increased rating in excess of 10 percent since May 1, 2011 for a right knee disability is remanded. REASONS FOR REMAND The Veteran served in active-duty service with the Army from August 1989 to November 1993. This matter is on appeal from a September 2010 rating decision. The Board remanded this decision in March 2019 for additional development. In a September 2020 Board decision, the Board denied entitlement to an increased rating in excess of 10 percent for the Veteran's right knee disability. The Veteran appealed his denial to the Court of Appeals for Veterans Claims (CAVC or the Court). The Court, in July 2021, issued a decision to vacate and remand the issue back to the Board for re-adjudication. The Board finds that remand is warranted for additional development. In a May 2010 VA examination, the Veteran reported symptoms of giving way, instability, stiffness, weakness, and incoordination. The examiner did not indicate whether there were any findings of instability or opine on the Veteran's reported symptoms. The Board notes a July 2011 rating decision assigned a temporary 100 percent evaluation for the Veteran's right knee disability for the period from February 28, 2011 to May 1, 2011. The Veteran was afforded VA examinations in October 2016, December 2016 and January 2019. The Board notes that in the December 2016 and January 2019 VA examination, which were both held by the same examiner, the examiner was unable to determine whether the Veteran's pain, weakness, fatigue, or incoordination resulted in additional functional loss with repeated use over time. The December 2016 and January 2019 examiner opined that they were unable to determine limitation during repeated use or flareups without speculation, stating that such opinions would be "not feasible and it would be mere speculation on the part of this examiner." In the July 2021 CAVC decision, the Court found the September 2020 Board decision failed to consider whether separate ratings were warranted for the Veteran's right knee disability. The Court noted that the May 2010 VA examination did not provide information regarding weakness, fatigue, and incoordination as required in DeLuca. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The Court also found the September 2020 Board decision erred in relying on VA examinations that did not comply with the Court requirements found in Sharp v. Shulkin where an examiner's opinion could not opine without speculation without considering "all procurable and assembled data before stating that an opinion cannot be reached...and where the examiner has explained the basis...that a non-speculative opinion cannot be offered." See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). As such, the Court vacated and remanded the appeal to the Board to obtain an adequate examination and to consider whether a retrospective opinion is warranted to discuss the May 2010 VA examination. Accordingly, the Board finds remand is warranted to obtain a VA retrospective opinion to address the severity of the Veteran's right knee disability during the relevant period on appeal as well as to obtain an adequate VA examination to evaluate the current severity of the Veteran's right knee disability. See Chotta v. Peake, 22 Vet. App. 80 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the relevant time period). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated and outstanding treatment records. 2. Schedule the Veteran for appropriate VA examination to assess the current severities of the Veteran's service-connected right knee disability. The electronic claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed and all findings should be set forth in detail. Upon examination of the record and the Veteran, the examiner should address the following: (a.) Record in detail the current symptoms and manifestations of the Veteran's right knee disability. (b.) The examiner is asked to indicate the point during range-of-motion testing that motion is limited by pain. The examiner should test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing. (c.) The examiner should describe the extent of any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology and/or is evidenced by visible behavior such as facial expression or wincing. (d.) If the Veteran is not suffering from a flare-up of his right knee disability at the time of the examination, the examiner must attempt to ascertain information, such as frequency, duration, characteristics, severity, and functional loss, regarding any flare-ups by alternative means and to estimate the functional impact of flare-ups in terms of range of motion on the basis of that information. The examiner is advised that CAVC has held that the examiner cannot refuse to give an opinion, citing speculation, merely because the reported flareups are not directly observed, but can only do so if the "inability to provide an opinion without resorting to speculation 'reflect[s] the limitation of knowledge in the medical community at large'"as opposed to insufficient information or unprocured testing. If that is the case here, the examiner should indicate such in the report. (e.) The examiner should express an opinion as to whether pain or other manifestations occurring during flare-ups or with repeated use could significantly limit functional ability of the affected parts. (f.) The examiner should identify the degree of any additional range of motion loss due to pain on use or during flare-ups. (g.) If the Veteran reports flare-ups but the examination is not conducted during a flare-up, appropriate information should be solicited from the Veteran in order to attempt to estimate any additional impairment during flare-ups. (h.) The examiner should discuss the Veteran's surgical history and procedure to treat a tear in his right knee and report on whether surgical procedure was successful in repairing the tear and/or resulted in persistent instability. (i.) The examiner should also provide a retrospective opinion as to the nature and severity of the Veteran's right knee disability and include a discussion of the Veteran's documented medical history and complaints regarding the severity of his right knee prior to February 28, 2011 and from May 1, 2011. The examiner should specifically address the findings made in the May 2010, October 2016, December 2016 and January 2019 VA examinations held for the right knee disability. (j.) The examiner should describe all symptomatology due to the Veteran's right knee disability spine disability during the period prior to February 28, 2011 and from May 1, 2011. The examiner must comment as to whether there was pain, weakened movement, excess fatigability, or incoordination on movement. Based on the medical records, examinations, and the Veteran's reports, the examiner should also note the degree to which any additional range of motion was lost during this time due to (1) pain on use, including during flare-ups and following repetitive use; (2) weakened movement; (3) excess fatigability; or (4) incoordination. (k.) The examiner should also glean information from the Veteran and his medical records regarding whether his right knee disability had flare-ups during the appeal period prior to February 28, 2011 and from May 1, 2011 and, if so, the flares' severity, frequency, duration, and functional loss manifestations. The examiner should estimate the degree to which range of motion was lost during a flare-up and must describe any other functional impairment due to flare-ups. (l.) The examiner is also advised that the Veteran is competent to report in-service events and treatment, and his symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. (m.) A complete rationale is requested for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.