Citation Nr: 21008811 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 16-27 163 DATE: February 18, 2021 REMANDED Entitlement to an initial disability rating greater than 10 percent for right knee strain with degenerative joint disease (DJD) prior to July 3, 2019 is remanded. Entitlement to a compensable initial disability rating for right knee instability prior to November 28, 2014, and greater than 10 percent from November 28, 2014 to July 2, 2019 is remanded. Entitlement to a compensable initial disability rating for right knee extension prior to July 3, 2019 is remanded. Entitlement to a disability rating greater than 30 percent for total right knee replacement from September 1, 2020 is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1965 to December 1967. The Veteran appeals a September 2013 rating decision by the Agency of Original Jurisdiction (AOJ) granting service connection for right knee strain with a 10 percent disability rating, effective March 6, 2013. In a May 2016 rating decision, the AOJ assigned an effective date of April 3, 2011 for right knee strain and granted a non-compensable disability rating for right knee extension effective April 20, 2016. In a September 2016 rating decision, the AOJ granted a 10 percent disability rating for right knee instability effective November 28, 2014. Subsequently, the Veteran was granted a total disability rating following a right knee total arthroplasty for the period from July 3, 2019 to August 31, 2020, which is considered a full grant of the benefit sought and that period is not on appeal. AB v. Brown, 6 Vet. App. 35 (1993). Thereafter, the AOJ assigned a 30 percent rating for his right knee disability pursuant to Diagnostic Code 5055. However, because the Veteran was not granted the maximum schedular rating, the appeal remains pending for the period prior to July 3, 2019, and the period beginning September 1, 2020. This case was previously before the Board in October 2018 and remanded for additional development. As such, the case has returned to the Board for further appellate proceedings. However, as explained below, the Board finds that another remand is necessary in order to provide the Veteran with an adequate examination. 1. Right Knee Previously, the Board remanded this case for a new knee examination to comply with the holdings in Sharp v. Shulkin, 29 Vet. App. 26 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016). The Veteran was afforded a VA examination in October 2019. However, the Board finds that while the October 2019 VA examination complies with Correia, it does not comply with Sharp, and remand is necessary for a new examination. In Sharp v. Shulkin, the Court held that a VA examination is inadequate when the VA clinician does not elicit relevant information as to the Veteran’s flares or ask him to describe additional functional loss, if any, he suffered during flares and then does not “estimate the [Veteran’s] functional loss due to flares based on all the evidence of record (including the [Veteran’s] lay information) or explain why [he or she] could not do so.” 29 Vet. App. 26, 35 (2017). The October 2019 VA examiner checked the box indicating that the Veteran did not report that he suffered from flare-ups. See October 2019 VA examination report. However, the Veteran’s contemporaneous physical therapy treatment notes from the same month, October 2019, clearly show that he did experience flares regarding his right knee. Specifically, during his October 2, 2019 physical therapy session, when asked what his current pain level was, the Veteran stated it was 0/10, but at worst, his right knee pain can reach a 9/10, and currently, his worst knee pain experienced is an 8/10. See October 2, 2019 physical therapy treatment note. Given that the Veteran described a current level of pain that was lower than what he experienced on other days, the Board finds this sufficient evidence to describe a flare-up. The same pattern of explanation is present throughout the Veteran’s other physical therapy treatment notes for the month of October 2019. Even the day before his October 2019 VA knee examination, the Veteran reported his current knee pain was 1/10, but that at worst is could reach a 3/10. See October 22, 2019 physical therapy treatment note. However, as mentioned above, the October 2019 VA examiner simply checked the box that the Veteran did not report flare-ups. See October 2019 VA examination report. The Board finds that it is reasonable to believe that if the Veteran reported symptoms akin to flare-ups just the day before his VA examination, he would likely still have the same manifestations the day after. Thus, the October 2019 VA examiner did not elicit relevant information about flare-ups, nor did they decide as to whether pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-ups—including a failure to describe functional loss in terms of range of motion in degrees and providing such measurements. Therefore, the Board finds that the October 2019 VA examination did not comply with Sharp and remand is necessary for an additional examination. 2. TDIU Because a decision on the remanded issues could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. A remand of the claim for entitlement to TDIU is required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records relevant to treatment the Veteran received for his right knee disability that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. Thereafter, schedule the Veteran for an examination of the current severity of his right knee disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If possible, this should include the range of motion for the left knee. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner should specifically address the evidence of flare-ups as described by the Veteran during his October 2019 physical therapy treatment notes. To the extent possible, the examiner should identify any symptoms and functional impairments due to the right knee alone and discuss the effect of the Veteran’s right knee disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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). 3. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Katie Poe, 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.