Citation Nr: 21007653 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 16-06 758 DATE: February 10, 2021 REMANDED Entitlement to an initial compensable disability rating for right knee tendonitis, meniscal tear (previously characterized as degenerative arthritis and lateral meniscal tear and tendonitis) prior to August 13, 2019, and in excess of 20 percent, thereafter, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 12, 2008 to October 30, 2008, from July 2009 to August 2010, and from January 2014 to February 2015, active duty for training from June 28, 2019 to July 11, 2019, with additional active service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision. A June 2020 rating decision assigned a 20 percent disability rating for the Veteran’s right knee tendonitis, meniscal tear, effective August 13, 2019. In October 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing. A transcript of that hearing is of record. The record reflects that you received a letter dated October 6, 2020, indicating that you could request a virtual tele-hearing instead of waiting for a travel board hearing. Upon further review, you do not have a pending hearing request. You provided testimony in a hearing with a Veterans Law Judge on October 18, 2018. I have considered the transcript of that hearing as evidence in making my decision. The Veteran’s claim for an increased rating was remanded by the Board in October 2018 for further development. Although the Board sincerely regrets the additional delay, another remand is necessary to ensure that there is a complete record upon which to decide her claim, so she is afforded every possible consideration. Entitlement to an initial compensable disability rating for right knee tendonitis, meniscal tear (previously characterized as degenerative arthritis and lateral meniscal tear and tendonitis) prior to August 13, 2019, and in excess of 20 percent, thereafter, is remanded. The issue of entitlement to an increased disability rating for the Veteran’s right knee tendonitis, meniscal tear was remanded by the Board in October 2018 to obtain an examination to determine the current severity of the disability. The Agency of Original Jurisdiction obtained an August 2019 Knee and Lower Leg Conditions Disability Benefits Questionnaire. The Board finds that the August 2019 examination does not comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017). See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate) VA examiners are required to obtain information from the Veteran as to the severity, frequency, and duration of flare-ups, as well as precipitating and alleviating factors, and the extent of functional impairment. Sharp, 29 Vet. App. at 32. VA examiners are also required to estimate the additional loss of range of motion during a flare-up based on all procurable information from the record, as well as the Veteran’s own statements. Id. at 34-35. If an estimate cannot be provided without resort to speculation, it must be clear whether this is due to a lack of knowledge among the medical community at large, or insufficient knowledge of the specific examiner. Id. at 36. The August 2019 examination report states that the Veteran has constant right knee pain that is worsening. She experiences aching in her knee, and is unable to bend, walk, and stand without pain. The Veteran reports flare-ups of her right knee tendonitis, meniscal tear. She described her flare-ups as increased aching, swelling, pain, and buckling of her knee that occur three times per week. She advised that her flare-ups last for two and a half hours and rated her flare-ups as a 9 out 10 in severity. The examination report does not provide the alleviating factors relating to the Veteran’s flare-ups. The examination report indicates that that pain, fatigue, and weakness significantly limit functional ability with flare-ups. The examiner stated that she could not describe the Veteran’s flare-ups in terms of range of motion because the examination was not conducted during a flare-up and its effect on her range of motion would be variable. It is not apparent why the examiner could not estimate additional loss of range of motion based on the Veteran’s statements describing the flare-ups, or why the available information in the file was not sufficient to permit such an estimate, especially considering the examiner’s statement that the effect of her flare-ups would be variable on her range of motion. Therefore, the Veteran must be afforded a new examination. Should the new examination be conducted while the Veteran is not experiencing a flare-up of her right knee, the estimation of additional functional loss and additional loss of range of motion during a flare-up must be made after obtaining information concerning the severity, frequency, and duration of flare-ups, as well as precipitating and alleviating factors. Also, because the August 2019 examination report demonstrates that the Veteran reported flare-ups of her right knee tendonitis, meniscal tear, and the examination report does not contain an estimation of the additional loss of range of motion during a flare-up, a retrospective medical opinion is necessary to capture the severity of the Veteran’s right knee disability. See Chotta v. Peake, 22 Vet. App. 80 (2008) (when there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted). The matter is REMANDED for the following action: 1. Obtain the Veteran’s service treatment records for any period of active duty after February 2015, including from June 28, 2019 to July 11, 2019 and from October 2020 to the present. 2. Obtain any outstanding VA treatment records. 3. After the above development is completed, schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the current severity of her service-connected right knee tendonitis, meniscal tear. (a.) The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. (b.) The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (c.) To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s right knee tendonitis, meniscal tear alone and discuss the effect of it on any occupational functioning and activities of daily living. (d.) The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page)   (e.) The examiner must provide a retrospective medical opinion, as best as can be ascertained from the Veteran’s self-reports as well as from clinical records and other evidence, including VA examination reports. The retrospective medical opinion must estimate any additional degrees of limited motion caused by functional loss during a flare-up. The Veteran reported flare-ups of her right knee tendonitis, meniscal tear in the August 2019 Knee and Lower Leg Conditions Disability Benefits Questionnaire. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean Mussey, 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.