Citation Nr: 21006088 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 10-31 870A DATE: February 3, 2021 REMANDED Entitlement to an evaluation in excess of 10 percent for internal derangement, right knee prior to October 29, 2014, and in excess of 30 percent for status post right knee replacement from December 1, 2015 is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1972 to September 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This matter was remanded by the Board multiple times, followed by a decision denying entitlement to an increased rating in February 2018. The Veteran appealed the Board's February 2018 decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2018 Order, the Court granted a joint motion for remand (JMR) and vacated the Board's February 2018 decision. The Court remanded the case for further action consistent with the terms of the JMR. The Board remanded the matter for further action consistent with the JMR in June 2019. Entitlement to an evaluation in excess of 10 percent for internal derangement, right knee prior to October 29, 2014, and in excess of 30 percent for status post right knee replacement from December 1, 2015 is remanded. Additional development is necessary with regard to the Veteran's claim. Although the Board sincerely regrets the delay, it is necessary to ensure that there is a complete record upon which to decide his claim so that he is afforded every possible consideration. In this regard, the December 2018 JMR found that the June 2017 VA examination, which the February 2018 Board decision relied on, was inadequate. The JMR noted that although the June 2017 VA examiner found that the Veteran had flare-ups, he did not estimate any additional degrees of limited motion caused by functional loss during a flare-up, stating that “it would be only with resort to mere speculation to report the additional ROM limitation due to pain during a flare at that time.” The December 2018 JMR found that this did not comply with the requirements of Sharp v. Shulkin, and the Board therefore remanded the claim in June 2019 to obtain an adequate VA examination. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran was afforded a new VA examination in November 2019, where the VA examiner stated that the Veteran did not have flare ups at all and therefore did not comment on any additional degrees of limited motion during a flare up. The Board finds the November 2019 VA examination inadequate. In this regard, the Veteran’s medical treatment record shows that he has endorsed flare ups numerous times; indeed, the December 2018 JMR noted that he had flare ups and found the June 2017 VA examination inadequate for its lack of information regarding the Veteran’s flare ups. Additionally, the December 2018 JMR noted that the Veteran has arthritis in his right knee, and directed the Board to analyze whether he is entitled to a separate compensable rating for his arthritis pursuant to § 4.59 given his diagnosis of arthritis and a documented history of right knee pain. The November 2019 VA examiner stated that imaging studies had been done and the Veteran did not have arthritis in either knee. The Board finds this statement inadequate, as the Veteran has been documented to have arthritis in past VA examinations as well as VA medical treatment records. See October 2014 VA Medical Treatment Record. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, a new examination discussing the Veteran’s arthritis in his right knee is warranted. The Veteran’s representative also noted that there seemed to have been an oversight in the Veteran’s appeals process, namely in regard to the February 2009 VA examination. See January 2021 Appellate Brief. The representative noted that the Veteran has previously complained of instability in his right knee; the February 2009 VA examiner noted in the “summary of joint symptoms” section of the examination report that the Veteran had instability in his right knee, but nevertheless concluded in the “summary of general joint findings” section of the examination that the Veteran did not have instability in his right knee. The representative argued that clarification was necessary as to the inconsistencies in the February 2009 VA examination. Indeed, the Board notes that the Veteran has complained of instability in his right knee numerous times. See November 2011, February 2016 VA Medical Treatment Records. The November 2019 VA examiner also stated that joint stability testing had been performed and there was no joint instability in the Veteran’s right knee. In light of numerous reports of joint instability in the Veteran’s VA medical treatment records, the Board finds that a new VA examination commenting on his right knee instability is necessary. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to assess the nature and level of severity of his service-connected right knee disability for the entire period on appeal. The Veteran’s claims file, including a copy of this remand, must be made available to the examiner, who must note its review. The appropriate Disability Benefits Questionnaire should be filled out. For each examination report, the examiner must include all the following: a) Active range of motion testing results; b) Passive range of motion testing results; c) Weightbearing range of motion testing results; d) Nonweightbearing range of motion testing results; and e) All above-mentioned range of motion measurements on the opposite undamaged joint. If the examiner is unable to conduct one or more of the above tests or finds that it is unnecessary, the examiner must provide an explanation. In any event, the type of test performed (i.e. active or passive, weightbearing or nonweight bearing), must be specified. The examiner must provide numerical range of motion measurements for each of the above-mentioned tests. The examiner is asked to provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or 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 state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given the medical science and the known facts); 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). The examiner is advised that the Veteran has a diagnosis of arthritis in his right knee. The examiner must comment on the effect of the Veteran’s right knee arthritis, and whether it produces painful motion for the entire period on appeal. The examiner must also comment on whether the Veteran had/has right knee instability for the entire period on appeal. The examiner is pointed to VA medical treatment records showing reports of right knee instability. See November 2011, February 2016 VA Medical Treatment Records. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. N. RIPPEL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Mohammad 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.