Citation Nr: 21075884 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-04 707 DATE: December 21, 2021 REMANDED Entitlement to an increased initial evaluation for left ankle tenosynovitis with degenerative arthritis, currently rated as 10 percent disabling, is remanded. Entitlement to an increased evaluation for a left knee disability prior to October 25, 2016 and since December 1, 2017, currently rated as 10 percent disabling prior to October 14, 2016, 20 percent disabling prior to October 25, 2016, and as 30 percent disabling since December 1, 2017, is remanded. Entitlement to an increased evaluation for a right knee disability prior to August 14, 2017 and since October 1, 2018, currently rated as 10 percent disabling prior to October 14, 2016, 20 percent disabling prior to August 14, 2017, and as 30 percent disabling since October 1, 2018, is remanded. Entitlement to a temporary total disability rating for a period of convalescence following partial left knee replacement surgery between October 25, 2016 and December 1, 2016 pursuant to 38 C.F.R. § 4.30 is remanded. Entitlement to a temporary total disability rating for a period of convalescence following total right knee replacement surgery between August 14, 2017 and October 1, 2017 pursuant to 38 C.F.R. § 4.30 is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1993 to February 1997. This case comes to the Board from a decision issued in June 2012 by the Agency of Original Jurisdiction (AOJ). In August 2019, the Veteran and members of his family testified before the undersigned at a Travel Board hearing. A transcript of that hearing is of record. The Board last considered this case in December 2019, when it issued a decision and remand granting temporary 100 percent disability ratings for one-year periods following left and right knee surgeries which took place, respectively, in October 2016 and in August 2017. For the periods since December 2017 (for the left knee) and November 2018 (for the right), the Board granted 30 percent disability ratings. The Board considered the possibility that the separate claims for temporary total disability ratings for periods of post-surgical convalescence pursuant to 38 C.F.R. § 4.30 became moot, or were subsumed within, the award of temporary 100 percent ratings for one year after knee replacement surgery authorized by 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5055. As the Board explained, subsection (c) of 38 C.F.R. § 4.30 and note (1) following DCs 5051 to 5056 indicated that, in an appropriate case, a Veteran can receive a temporary 100 percent rating under 38 C.F.R. § 4.30 followed by a one-year temporary 100 percent rating for knee replacement under DC 5055. The Board further explained that, according to note (1) to DCs 5051 to 5056, a temporary 100 percent rating following knee replacement, if appropriate, "will commence after the 1-month total rating assigned under § 4.30 following hospital discharge." Applying the two provisions together, the temporary ratings for periods of post-surgical convalescence, if supported by the evidence, will extend from October 25 to December 1, 2016 for the left knee and from August 14 to October 1, 2017 for the right knee. Because it needed more information before deciding the other issues, the Board remanded the Veteran's claims seeking higher ratings for disabilities of both knees and the left ankle, temporary total ratings for post-surgical convalescence following both knee replacements, and service-connected compensation for claimed disabilities of the back, hips, and right ankle. After obtaining new medical examination reports, the AOJ granted service connection for current disabilities of the back, hips, and right ankle. Since these claims have been resolved in his favor, they are no longer part of this appeal. Increased Ratings for both Knees and Left Ankle In its December 2019 remand, the Board instructed the post-remand examiner to prepare a report with estimates of the likely range of motion, in degrees, in the relevant joints (left knee, right knee, and left ankle) after repeated use over time or during "flare-ups" or periods when the symptoms of the relevant disabilities are at their worst. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The Board's instructions required the examiner "to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use. If the examination does not take place during a flare or repetitive use testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares described in terms of degrees." (emphasis added). In April 2021, the AOJ arranged for a nurse practitioner to examine the Veteran's knees and ankles. In September 2021, the examiner prepared reports with information about the severity of service-connected disabilities in these joints. Although the examiner recorded the results of several range of motion tests, the report failed to include estimates of range of motion during flare-ups or after repetitive for either knee or for the left ankle. If the Veteran did not report flare-ups, then this omission might be harmless error. But part 2B of both questionnaires describe flare-ups in all the relevant joints, which the Veteran apparently described as severe. For the knees and the left ankle, the examiner wrote, "While claimant may report loss of ROM [range of motion] following repeated use over time or during flare, after reviewing the claimant's history, current exam findings, relevant evidence of record, and utilizing my own clinical judgment and medical expertise, I am unable to determine ROM without resorting to mere speculation as the claimant was not examined during repeated use over a period of time or during a flare. Accurate ROM could not be determined based on description or demonstration of the decrease in ROM with repeated use over time or during flare-ups." The September 2021 knee and ankle reports are inadequate because it remains unclear whether the examiner asked the Veteran to demonstrate or describe the extent of limited motion during flare-ups or after repetitive use as required by Sharp. The examiner might be right to complaint that such a description or demonstration is unlikely to be as accurate as a test performed using a goniometer. But Sharp clearly requires that the examiner elicit such information from the Veteran and consider the Veteran's answer in the report in an estimate of range of motion. When an appeal is remanded, the claimant obtains a right to compliance with the Board's instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). To enforce its prior orders seeking the specific range of motion estimates required by Sharp, the Board must remand the knee and ankle claims for new examinations. Temporary Total Ratings for Convalescence Like most VA examination report forms, the examination reports required by today's remand will include information on the relevant medical history concerning service-connected disabilities of both the Veteran's knees. The medical history information about the knees could potentially affect whether or not the Veteran is eligible to receive temporary total disability ratings for periods of post-surgical convalescence. Thus, the claims for temporary total ratings under 38 C.F.R. § 4.30 are intertwined with the increased rating claims being remanded. The appropriate remedy when a pending claim is inextricably intertwined with an issue on appeal is to defer adjudication of the claim on appeal pending the adjudication of the inextricably intertwined claim. See Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001); Henderson v. West, 12 Vet. App. 11, 20 (1998). The Board will remand the temporary total rating claims pending the adjudication of the intertwined issues. The matters are REMANDED for the following action: 1. Obtain copies of all records of the Veteran's VA medical treatment since June 2021. 2. Schedule a VA examination to ascertain the current severity of the Veteran's service-connected left and right knee disabilities. The VBMS and Virtual VA electronic claims files must be made available to and be reviewed by the examiner. All indicated testing should be accomplished and all symptomatology associated with the relevant disabilities should be identified. In addition to all findings identified on the appropriate examination form, the examiner should determine the effective range of motion of the Veteran's knees and present the results of range of motion tests in a written report which complies with 38 C.F.R. § 4.59 by recording separate sets of the range of motion test results for both active and passive motion, and in weight bearing and nonweight-bearing. The examiner's report should describe objective evidence of painful motion, if any, during each test. IT IS NOT SUFFICIENT MERELY TO INDICATE WHETHER OR NOT PAIN WAS PRESENT DURING ONE OF THE REQUIRED RANGE OF MOTION TESTS. If any of these findings are not possible, please provide an explanation. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limit functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE OR IF REPETITIVE TESTING CANNOT BE PERFORMED, THE EXAMINER MUST ASK THE VETERAN TO DESCRIBE AND/OR DEMONSTRATE THE EXTENT OF MOTION LOSS DURING FLARES OR REPETITIVE USE AND ATTEMPT TO ESTIMATE THE EXTENT OF MOTION LOSS IN TERMS OF DEGREES. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. 3. Schedule a VA examination to ascertain the current severity of the Veteran's service-connected left ankle disability. The VBMS and Virtual VA electronic claims files must be made available to and be reviewed by the examiner. All indicated testing should be accomplished and all symptomatology associated with the relevant disability should be identified. In addition to all findings identified on the appropriate examination form, the examiner should determine the effective range of motion of the Veteran's ankles and present the results of range of motion tests in a written report which complies with 38 C.F.R. § 4.59 by recording separate sets of the range of motion test results for both active and passive motion, and in weight bearing and nonweight-bearing. The examiner's report should describe objective evidence of painful motion, if any, during each test. IT IS NOT SUFFICIENT MERELY TO INDICATE WHETHER OR NOT PAIN WAS PRESENT DURING ONE OF THE REQUIRED RANGE OF MOTION TESTS. If any of these findings are not possible, please provide an explanation. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limit functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE OR IF REPETITIVE TESTING CANNOT BE PERFORMED, THE EXAMINER MUST ASK THE VETERAN TO DESCRIBE AND/OR DEMONSTRATE THE EXTENT OF MOTION LOSS DURING FLARES OR REPETITIVE USE AND THE EXAMINER MUST ATTEMPT TO ESTIMATE THE EXTENT OF MOTION LOSS IN TERMS OF DEGREES. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. 4. The AOJ must carefully review the examination reports and opinions requested above and ensure that they comply with the directives of this remand. If any report is deficient in any manner, the AOJ must implement corrective procedures at once. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Nye, 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.