Citation Nr: 21077280 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 16-21 609 DATE: December 29, 2021 REMANDED An initial rating in excess of 10 percent for a left knee disability, excepting the period from February 13, 2014 to May 1, 2014 when the Veteran was in receipt of a 100 percent disability rating under 38 C.F.R. § 4.30, is remanded. A rating in excess of 10 percent for a left ankle disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Marine Corps from March 1987 to April 1991. The matter is on appeal before the Board from a July 2014 rating decision. The Board previously denied the appeal in an August 2019 decision. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court or CAVC). In May 2020, the Court issued a Joint Motion for Remand (JMR), which vacated the August 2019 Board decision and remanded the issues to the Board for further development. In the May 2020 JMR, the parties agreed that the July 2016 and October 2018 VA examinations were inadequate because they violated Sharp v. Shulkin and Correia v. McDonald. 29 Vet. App. 26, 34 (2017); 28 Vet. App. 158, 169-170 (2016). As such, in November 2020, the Board remanded the issues for further development, specifically to provide the Veteran with new VA examinations that comply with the requirements of Correia and Sharp. Unfortunately, the Board had to remand the issues again in August 2021, as the Board found the May 2021 VA examinations to be inadequate. In the August 2021 Board remand, the Board indicated that the May 2021 VA knee examination and medical opinion contradicted each other. That is, in the knee examination the examiner reported that the Veteran denied flare-ups, but in the medical opinion the examiner stated that the Veteran was reporting flare-ups. Additionally, the Board acknowledged that the Veteran's record reflects that he has reported flare-ups in conjunction with his left knee. Thus, the Board found the May 2021 VA knee examination and medical opinion to be inadequate. Pertaining to the May 2021 ankle examination, the Board noted that the examiner had reported that the Veteran experienced pain with both plantar flexion and dorsiflexion, but had not indicated at what degree of motion the Veteran started to experience pain. In addition, the examiner had relayed that pain, weakness, incoordination, fatiguability, and lack of endurance with repeated use over time significantly limited the Veteran's functional ability, but provided that the range of motion in degrees for the joint after repeated use over time was normal. Thus, the Board found the May 2021 ankle examination to be inadequate. It is regrettable, but the Board finds that a remand is again necessary for further development. Following the August 2021 Board remand, the Veteran underwent VA examinations for both his left knee and left ankle in September 2021. However, in both examinations the VA examiner indicated that the Veteran did not report having flare-ups with either his left knee or his left ankle. The examiner also did not provide range of motion estimates with repeated use over a period of time. The Board has previously acknowledged that the Veteran's record reflects that he has reported having flare-ups. In addition, in the Appellate Brief submitted in November 2021, the Veteran argues that while he may not have continuous flares, he does have episodes that present with additional functional limitations that were not addressed by the VA examiner. Thus, a remand is warranted for both issues to provide the Veteran with VA examinations that address his reports of flare-ups, and provides estimates of the Veteran's range of motion in degrees during both flare-ups and repeated use over a period of time. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the severity of his service-connected left knee disability. Upon examination, in addition to the initial range of motion and the range of motion after repetitive use testing, the VA examiner is to determine the ranges of motion in degrees for repeated use over time and with flare-ups. If the examiner is unable to describe the Veteran's functional loss in degrees without conjecture, then it must be clear that the examiner "has considered all procurable assembled data before stating that an opinion could not be reached" and "the examiner must explain the basis for his or her conclusion that a non-speculative opinion cannot be offered." Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017); see also Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). For further clarity, the examiner should review the August 2021 and November 2020 Board remands, and the May 2020 CAVC JMR. 2. Schedule the Veteran for a VA examination to determine the severity of his service-connected left ankle disability. Upon examination, in addition to the initial range of motion and the range of motion after repetitive use testing, the VA examiner is to determine the ranges of motion in degrees for repeated use over time and with flare-ups. If the examiner is unable to describe the Veteran's functional loss in degrees without conjecture, then it must be clear that the examiner "has considered all procurable assembled data before stating that an opinion could not be reached" and "the examiner must explain the basis for his or her conclusion that a non-speculative opinion cannot be offered." Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017); see also Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). For further clarity, the examiner should review the August 2021 and November 2020 Board remands, and the May 2020 CAVC JMR. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Lutgens-Staley, 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.