Citation Nr: 21007747 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 15-20 983 DATE: February 10, 2021 REMANDED Entitlement to an increased rating in excess of 10 percent disabling for painful extension of the left knee prior to May 1, 2017, is remanded. Entitlement to a rating in excess of 10 percent for left knee instability prior to January 10, 2014, and a rating in excess of 20 percent from January 10, 2014 to February 11, 2019, is remanded. Entitlement to a rating in excess of 10 percent for degenerative arthritis of the left knee (left knee DJD), prior to February 11, 2019, and a rating in excess of 30 percent from April 1, 2020 (exclusive of a period of temporary total evaluation), is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from March 1974 to February 1977. This case comes to the Board of Veterans’ Appeals (Board) on appeal of a July 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). This matter before the Board of Veterans’ Appeals (Board) has a complex procedural history that is provided in detail in a March 2019 Board remand and will not be reiterated herein. In an April 2019 rating decision, the RO changed the Veteran’s diagnostic codes and indicated that an evaluation of s/p left knee total arthroplasty (previously rated as left knee degenerative arthritis and left knee instability, (DC 5003-5260, 5257) which is currently 10 percent disability, is increased to 100 percent effective February 11, 2019. The RO indicated that a 100 percent evaluation is continued for 13 months and thereafter will be rated on residuals according to symptomology. The RO noted that an evaluation of 30 percent is assigned from April 1, 2020 under Diagnostic Code 5055. 1. Entitlement to an increased rating in excess of 10 percent disabling for painful extension of the left knee prior to May 1, 2017, is remanded. 2. Entitlement to a rating in excess of 10 percent for left knee instability prior to January 10, 2014, and a rating in excess of 20 percent from January 10, 2014 to February 11, 2019, is remanded. 3. Entitlement to a rating in excess of 10 percent for degenerative arthritis of the left knee (left knee DJD), prior to February 11, 2019, and a rating in excess of 30 percent from April 1, 2020 (exclusive of a period of temporary total evaluation), is remanded. The Veteran was afforded a VA examination in November 2019. The Veteran stated that his left knee continues to be stiff and painful throughout the day. The Veteran expressed that his knee pops and cracks when walking and that he experiences tightness and pain in the back of his left leg. The Veteran reported that he feels like the pain is going up his back. The Veteran reported flare-ups. The Veteran stated that when he experiences a flare-up, he feels like pins and needles are shooting straight through his knee. The Veteran indicated that he has daily flare-ups that are moderate in severity that last 3 to 4 minutes. The Veteran reported that he has functional loss or functional impairment. The Veteran stated that he cannot work in the yard like he used to because he cannot get down on his knees. The Veteran also expressed that he cannot hunt or fish because of his pain walking down hills. In addition, the Veteran noted that he feels that his knee will buckle back and cause him to fall. Upon examination, the examiner noted that the Veteran’s initial range of motion was abnormal. The examiner noted that flexion was from 10 to 80 degrees and extension was from 80 to 10 degrees. The examiner indicated that pain was noted on examination and causes functional loss. The examiner noted that the examination is medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner noted that pain, fatigue, weakness, and incoordination cause functional loss with repeated use over time. The examiner indicated that she was not able to describe in terms of range of motion. The examiner stated that after the physical examination, reviewing the claims file, and subjective complaints voiced by the Veteran, it could be concluded that there is a reduction in range of motion as a result of repeated use over time. The examiner noted that the examination is medically consistent with the Veteran’s statements describing functional loss during a flare-up. The examiner reported that pain, fatigue, weakness, and incoordination cause functional loss with flare-ups. The examiner indicated that she was not able to describe in terms of range of motion. The examiner stated that after the physical examination, reviewing the claims file, and subjective complaints voiced by the Veteran, it could be concluded that there is a reduction in range of motion as a result of a flare-up. In a March 2020 addendum opinion, the VA examiner noted that the examination was medically consistent with the Veteran’s report of flare/functional loss. Therefore, the examiner stated that the range of motion of 10 to 80 degrees is an accurate depiction. The Board finds that a new VA examination is warranted for the following reason. With regards to the November 2019 VA examination and the March 2020 addendum opinion, the Board finds that the VA examiner’s statements are contradictory. At the November 2019 VA examination, the examiner asserted that there would be a reduction in range of motion as a result of a flare-up and after repeated use over time. However, in March 2020, the same examiner provided a contradictory finding that the same limitations of motion would exist even though the examiner previously concluded that there would be a reduction in range of motion on flare-up and after repeated use. The Board is unable to evaluate these findings and as such, finds that the March 2020 VA addendum is of no probative value. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court noted that for a joint examination to be adequate, the examiner “must express an opinion on whether pain could significantly limit” a veteran’s functional ability, and that determination “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” Furthermore, the Court stated that the examiner must “obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves.” Sharp, 29 Vet. App. at 34. The examiner must also “offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans,” and the examiner’s determination “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. Id. at 10. In light of the above, the Board finds that a new VA examination is warranted to determine the severity of the Veteran’s service-connected knee disability. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Afford the Veteran a VA examination to determine the current severity of his service-connected left knee disability. All indicated tests and studies should be undertaken. The record, including a complete copy of this remand, must be made available for review in connection with the examination. The examiner should identify the current nature and severity of all manifestations of the Veteran’s left knee disability. The examiner should record the range of motion of the left knee observed on clinical evaluation in terms of degrees for flexion and extension. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination, results in any loss of range of motion. It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use. In this regard, the examiner should indicate whether, and to what extent, the Veteran’s range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. If the Veteran endorses experiencing flare-ups of his left knee, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that she/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. The examiner should also comment as to whether (and if so, to what extent, (i.e., slight, moderate, or severe)) the Veteran’s left knee disability results in recurrent subluxation or lateral instability. The examiner should also indicate whether there is dislocated or removed semilunar cartilage and, if so, the nature of the symptoms associated with such meniscus impairment. The examiner also should comment upon the functional impairment resulting from the Veteran’s left knee disability. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. 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.