Citation Nr: A21020079 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 200203-67906 DATE: December 16, 2021 REMANDED Entitlement to an evaluation in excess of 10 percent for residuals of fracture right mid tibia and fibula to include degenerative arthritis of the right knee (right knee disability) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1959 to August 1962. This matter comes before the Board of Veterans Appeals (Board) on appeal from a January 2020 decision by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran submitted a VA Form 10182 Notice of Disagreement appealing this decision to the Board and requesting a hearing with a Veterans Law Judge (VLJ). The claim was therefore timely appealed under the modernized review system, also known as the Appeals Modernization Act (AMA). In July 2021, the Veteran withdrew his request for a hearing, and said that he would prefer his case to receive Direct Review by a VLJ. When a claimant selects the Hearing docket in an appeal to the Board, the Board is permitted to consider evidence that was part of the record at the time of the Agency of Original Jurisdiction's (AOJ's) decision, as well as evidence submitted in the 90 days following the hearing. 38 CFR § 20.302(a). If a claimant selects the Hearing docket and later withdraws their request for a hearing, as the Veteran did here, the Board shall consider evidence that was part of the record at the time of the AOJ's decision, as well as evidence submitted in the 90 days following the claimant's withdrawal of their hearing request. 38 CFR § 20.302(b). The Board will therefore consider all evidence that was part of the record on January 27, 2020, and all evidence submitted between July 24, 2021 and October 12, 2021. (The Board notes, however, that there does not appear to be any evidence added to the record after July 24, 2021.) Evaluation of right knee disability The Board finds that a remand is necessary to obtain a new VA medical examination of the Veteran's right knee. VA has a duty to ensure that any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). If an examination is inadequate, VA has a duty to provide a new examination or, at least, explain why such an examination will not be provided. Failure to provide an adequate medical examination constitutes a pre-decisional duty to assist error on the part of the RO, and is grounds for remand. See 38 C.F.R. § 20.802(a); 38 U.S.C. § 5103A(g). The most recent examination of the Veteran's knees was in October 2018, and has several deficiencies related to its evaluation of functional loss after repeated use over time. First, the examiner's description of the impact of repeated use over time on the Veteran's right knee is inconsistent; when asked about medical history the Veteran described extreme pain ("10 on a 0-10 scale") when standing for prolonged periods, and the examiner later said that the Veteran was "unable to do prolonged sitting, standing, stairs, knee bending, climbing and it is directly related to" his service-connected knee disability. However, when asked whether "pain, weakness, fatigability or incoordination significantly limit[s the Veteran's] functional ability with repeated use over a period of time," the examiner said "no." Clarification is needed regarding the impact of repeated use over time on the Veteran's right knee function. Second, in finding that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over time, the examiner offered the following rationale: After further review of the order request, DBQ [Disability Benefits Questionnaire], physical exam, reported history and subjective complaints, relevant evidence of record and using my medical knowledge and expertise, there remains no basis to offer additional losses of function or motion when it comes to repeated use overtime. The examiner gave an identical rationale when asked about the functional impact of flare-ups. The Board cannot accept this clearly generic rationale. For the Board to evaluate a medical opinion, the examiner must support its conclusions with sufficient data and reasoning. This "rationale" offers no insight as to what aspects of the Veteran's statements, the medical record, or the examiner's knowledge led them to conclude that there was "no basis" for finding additional losses of function or motion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301-304 (2008). The matters are REMANDED for the following action: 1. Obtain a new examination of the Veteran's knees from an appropriate clinician, who has not already provided an opinion in this case. The Veteran's entire claims file (including a copy of this remand) must be made available to the examiner for review, and the examiner must certify in the opinion report that the claims file has been reviewed. The examiner must perform full range of motion testing (active and passive, weight-bearing and non-weight-bearing, and testing following three repetitions) for both knees. The examiner should describe any pain, weakened movement, excess fatigability, instability, and incoordination present. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner must clearly explain why. The examiner must clearly identify where in the arc of motion the Veteran begins to experience pain, regardless of whether the examiner ultimately finds that said pain results in functional loss. The examiner should state whether the examination is taking place during a flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his left knee symptoms and after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an estimate, in degrees, any additional limitation of motion caused by functional loss during a flare-up and after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should explain why, and state whether this is because of a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training.) It is not enough for the examiner to merely state that the additional functional loss cannot be described in terms of range of motion. 2. This case has been Advanced on the Docket. The AOJ must review the examination reports and opinions to ensure they are adequate and comply with the Board's specific remand directives herein. If an opinion is deficient in any manner, the AOJ must undertake immediate corrective action before returning the case to the Board. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shermila Sundquist 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.