Citation Nr: 21008903 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 16-06 411 DATE: February 18, 2021 REMANDED Entitlement to an evaluation in excess of 10 percent for left knee degenerative arthritis is remanded. REASONS FOR REMAND The Veteran had active service from August 1984 to February 1992. The Veteran appealed the previous Board decision of November 5, 2019 to the Court of Appeals for Veterans Claims (Court). In a September 2020 joint motion for vacatur and remand (JMR), which the Court granted, the parties agreed to vacate the November 2019 Board decision denying an increase in excess of 10 percent for left knee degenerative arthritis and remand for a new VA examination in accordance with the terms of the joint motion. Entitlement to an evaluation in excess of 10 percent for left knee degenerative arthritis is remanded. With reference to the joint motion of September 2020, the Veteran, through the attorney that represented her at the Court, argued that the November 2019 Board decision did not adequately address favorable evidence including, but not limited to, whether the Veteran has ankylosis of the left knee. The attorney specifically noted that the February 2019 VA examiner checked the box “no ankylosis” but also checked the box under additional factors of disability which included the language, “[l]ess movement than normal (due to ankylosis, adhesions, etc.).” The Board notes that this refers to a pre-populated box with examples for possible reasons for less movement. The attorney argued that because the examiner copied the language from the pre-populated box in the typed-out additional description section, the examiner created an internal inconsistency with regard to the existence of ankylosis of the Veteran’s left knee. The Veteran also argued that the Board relied upon an inadequate VA examination for reasons including that the February 2019 and September 2015 examiners did not offer an adequate basis for being unable to render an opinion without resort to speculation for flare-ups of the left knee, which the Veteran argues contradicts the requirements of Sharp. 29 Vet. App. 26 (2017). The Veteran also argued that the Board relied upon an inadequate VA examination for reasons including Correia conformation, i.e. that the February 2019 “opined that there was no objective evidence of pain on passive range of motion or when the knee was used in non-weight bearing, the examiner did not provide an opinion regarding the results of range of motion testing for active range of motion and weight-bearing range of motion.” (JMR at 3). The Veteran’s attorney submitted additional arguments regarding the Veteran’s left knee increased rating claim in a September 2020 letter: 1) That the Board did not adequately address all possible Diagnostic Codes (DC) for the Veteran’s left knee: a. DC 5256, ankylosis, argument as above b. DC 5257, that the Veteran has made lay statements about her knees “giving way” or “giving out,” and provided evidence of a history of falls, and such statements and evidence should be considered when determining if a separate rating is warranted for lateral instability under DC 5257; the attorney argues that it was improper for the Board to rely solely on the objective testing for joint instability on VA examinations when denying a separate rating for the left knee c. DC 5258, the attorney argues there is some evidence of effusion, pain, and meniscal damage that satisfy the criteria for this DC d. DC 5263, the attorney argues that the March 2015 private treatment record referencing, “some mild varus deformity to both knees,” (letter September 3, 2020) is favorable to this DC for genu recurvatum 2) Duty to assist arguments a. The attorney argues, as above, that the VA examiner’s lack of opinion (because it would rely on speculation) on the effect of flare-ups on the Veteran’s left knee does not comport with Sharp b. The attorney argues that the data from a July 2009 VA examination of the Veteran’s right knee that was conducted during a flare-up should be considered by VA examiners evaluating the left knee and opinion on effects during a flare-up. c. The attorney argues that the VA examiner’s lack of opinion (because it would rely on speculation) on the effect of repetitive use over time on the Veteran’s left knee is inadequate, because the Veteran has reported swelling with repetitive use d. The attorney argues that prior VA examinations did not meet the criteria of Correia because they did not test in weight-bearing mode, specifically highlighting the March 2017 VA examination. 3) Internal Inconsistencies a. Ankylosis, as described above b. Instability, as described above 4) The Effects of Medication a. The attorney argues that the Board acknowledged that the Veteran had received injections in her knee, but erred because it did not include “…discussion regarding whether the Appellant’s range of motion would have been worse, but for the ameliorative effects of the injections and medications she had been receiving.” (letter page 9, referencing Jones v. Shinseki, 26 Vet. App. 56 (2012)). The new VA examination must include range of motion testing for the left knee and testing results and opinions in accordance with Correia and Sharp; and address the arguments put forth by the Veteran.   The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of the service-connected left knee degenerative arthritis disability. 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. The examiner must include the following: (a.) The examiner shall review the Veteran’s records and respond accordingly to the questions on the examination report which records they reviewed. (b.) 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, 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). The examiner must discuss whether is it possible to estimate the state of the Veteran’s left knee during a flare-up by considering a VA examination of the right knee performed during a flare-up in July 2009. (c.) The examiner must attempt to elicit information regarding the impact on functional loss after repetitive use over time. If it is not possible to provide a specific measurement, or an opinion regarding repetitive use over time, 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). (d.) The examiner must perform testing in accordance with Correia requirements, in passive and active and weight-bearing and non-weight bearing movements. The examiner is asked to affirmatively confirm that such testing was performed; and if it was not performed, an explanation must be provided. (e.) The examiner must respond to the following questions regarding ankylosis: i. Does the Veteran’s left knee currently have ankylosis? ii. Does the Veteran have a history of ankylosis in the left knee at any time during the course of the appeal (i.e. since the Veteran filed her claim in December 2014)? (f.) The examiner must respond to the following questions regarding genu recurvatum: i. Does the Veteran have genu recurvatum in the left knee? ii. The Veteran notes that in March 2015, a private medical provider described “some mild varus deformity to both knees.” Does the Veteran currently exhibit mild varus deformity in the left knee? Does such deformity rise to the level of a medical diagnosis of or is such deformity consistent with genu recurvatum? (g.) The Veteran has reported a history of falls or almost falling, due to her knees “giving way,” or “giving out.” Does the Veteran’s left knee exhibit recurrent subluxation or lateral instability? Please further explain the answer with a reference to the Veteran’s statements, as well as any other relevant medical evidence. (h.) The evidence of record references knee injections or other medications. Please describe the ameliorative effects, if any, of injections or medications on the left knee. Provide an opinion   on what the state of the Veteran’s left knee impairment(s) would be without such injections or medications. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Miller 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.