Citation Nr: 21008399 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 13-00 714 DATE: February 16, 2021 REMANDED Entitlement to a disability evaluation in excess of 10 percent for a right knee disability is remanded. Entitlement to a disability evaluation in excess of 10 percent for a left knee disability is remanded. Entitlement to a disability evaluation in excess of 10 percent prior to July 14, 2020, for a low back disability is remanded. Entitlement to a disability evaluation in excess of 20 percent from July 14, 2020, for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1983 to May 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which assigned 10 percent disability ratings for a low back disability, a right knee disability, and a left knee disability from July 7, 2007. The Veteran submitted a notice of disagreement to appeal the assigned ratings. In an August 2020 rating decision, the RO increased the rating for the low back disability to 10 percent from July 14, 2020. However, because the full benefits sought were not granted, the matter remains before the Board on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). In November 2019, the Board remanded unrelated claims for service connection for a head injury and total disability based on individual unemployability for further development. At this juncture, this development has not yet been completed. As such, these issues are not currently before the Board and will not be discussed herein. Turning to the claims presently before the Board, the Board cannot address them on their merits because remand is necessary to obtain new VA examinations. The Board observes that in the Veteran’s January 2015 and March 2019 VA examinations with respect to his back and knees, he complained of times when each condition would flare-up in severity. More specifically, he reported that flare-ups of his low back disability made it difficult for him to stand for long periods of time, bend, or lift things, while flare-ups of his knee disabilities made it difficult for him to stand or walk long distances. Likewise, in the March 2019 VA examination, he reported that the flare-ups of his low back disability that occurred when he woke up in the morning that would last approximately 20 or 25 minutes and resulted in severe pain. Additionally, he reported that the flare-ups of severe pain in his right and left knee disabilities that occurred constantly and caused him to lose his balance and fall. In the most recent VA examination undertaken in July 2020, the Veteran reported to the examiner that his condition had worsened. Confusingly, however, the examiner stated that the Veteran did not report any flare-ups of either his low back or knee disabilities. It stands to reason that if the Veteran reported that his condition had not improved, he would still experience flare-ups of his low back and knee disabilities. In the interest of assembling clear and reliable findings, remand is thus necessary to obtain a new VA examination that addresses all relevant evidence of record, including lay statements, regarding flare-ups of these conditions and their impact on the Veteran’s functional ability. Additionally, the Board notes that although the January 2015 VA examiner solicited information regarding the Veteran’s flare-ups, the examination reports do not note whether they were conducted during a flare-up of these disabilities. Moreover, the examiner did not provide an opinion in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups, or obtain detailed information about the severity, frequency, duration, precipitating and alleviating factors, or the extent of the functional impairment from the Veteran himself. Moreover, the VA examiner does not appear to have performed testing for pain on both active and passive motion or in weight-bearing and non-weight-bearing. As such, these examinations do not comply with the holdings in Sharp v. Shulkin, 29 Vet. App. 26 (2017), which requires such findings with respect to flare-ups, or Correia v. McDonald, 28 Vet. App. 158 (2016), which requires for testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. The March 2019 VA examination reports suffer from similar problems. For instance, although the examiner elicited information regarding the nature of the Veteran’s flare-ups, the examiner indicated that he could not estimate the additional limitation caused by flare-ups without resorting to mere speculation. To that end, he stated that it was “not possible, without resorting to mere speculation, to estimate loss of range of motion because there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions.” However, this statement is untrue. An opinion based on an inaccurate factual premise is entitled to no probative weight. Reonal v. Brown, 5 Vet. App. 458 (1993). As such, the examiner’s opinion with respect to estimating additional loss of range of motion during flare-ups is inadequate. Additionally, the VA examiner stated that passive range of motion testing could not be performed with respect to the low back as it was not feasible to do so in a safe and reasonable manner. However, the VA examiner did not elaborate as to why this was so. Last, the Board observes that the most recent VA examination of the low back does not appear to comply with the holding in Correia because passive range of motion testing was not performed. By way of explanation, the July 2020 VA examiner stated that passive range of motion testing was medically inappropriate, but he did not explain why this was so. For these reasons, remand is warranted to obtain a new VA examination that adequately complies with the holdings of Sharp and Correia. Accordingly, the matters are REMANDED for the following action: 1. After obtaining proper authorization, obtain any VA medical treatment records not currently in the Veteran’s claims file, as well as any relevant private treatment records not currently in the Veteran’s file, and associate them with the claims file. 2. Thereafter, arrange for the Veteran to undergo new VA examinations with an appropriate VA examiner(s) to evaluate the current severity of his service-connected low back and knee disabilities. The examinations should be conducted in accordance with the current disability benefits questionnaires, to include testing for pain on both active and passive motion, and for the knee in weight-bearing and non-weight-bearing, consistent with 38 C.F.R. § 4.59 as interpreted in Correia v. McDonald, 28 Vet. App. 158 (2016). If the examiner(s) is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so in the remarks portion of the questionnaire. Additionally, the examiner(s) should inquire whether the Veteran has any periods of flare-ups. The examiner(s)’s attention is specifically directed to consider the Veteran’s lay statements regarding flare-ups in the January 2015 and March 2019 VA examinations. If the Veteran reports any periods of flare-ups, but range of motion testing could not be conducted during a flare-up, state the severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, according to the Veteran, to what extent, if any, they affect functional impairment. If it is not possible to provide a response without resorting to mere speculation, and after doing everything that reasonably should be done to become informed, provide a clear explanation of why a response could not be provided without resorting to mere speculation. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Rademacher, 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.