Citation Nr: 21009697 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 16-48 129 DATE: February 23, 2021 REMANDED Entitlement to an initial disability rating in excess of 10 percent disabling for left knee chondromalacia patella is remanded. Entitlement to an initial disability rating in excess of 10 percent disabling for right knee chondromalacia patella is remanded. REASONS FOR REMAND The Veteran served on active duty from March 2010 to March 2015. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston Salem, Massachusetts. In a January 2019 decision, the Board denied entitlement to an initial disability rating in excess of 10 percent disabling for each the left and right knee chondromalacia patella. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2019 Order, the Court granted a joint motion for remand (JMR) and vacated the Board's January 2019 decision, remanding the case for further action consistent with the terms of the JMR. The Board remanded the claim in May 2020 to obtain a VA examination consistent with the terms of the JMR. 1. Entitlement to an initial disability rating in excess of 10 percent disabling for left knee chondromalacia patella is remanded. 2. Entitlement to an initial disability rating in excess of 10 percent disabling for right knee chondromalacia patella is remanded. The Board finds that a new VA examination is warranted to determine the severity of the Veteran’s service-connected left and right knee chondromalacia patella. Pursuant to the December 2019 Order, the Veteran was afforded a VA examination in November 2020. The Board finds that this examination does not comply with the requirements of Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this regard, the November 2020 VA examiner obtained 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. He noted that the severity was severe in both knees during flare-ups. In terms of frequency, the flare ups occurred during activities such as climbing stairs and prolonged standing or walking. During the flare-ups, the Veteran’s ability to perform activities such as climbing stairs or standing and walking for prolonged periods was limited. On examination, the examiner provided range of motion (ROM) measurements for both knees of 0 to 100 degrees. It was noted that the Veteran was not being examined immediately after repeated use over time or during a flare-up. The examiner reported that pain significantly limited functional ability with flare ups, and that he was able to describe the limited functional ability in terms of range of motion, described as from 0 to 100 degrees. The examiner also stated that the Veteran exhibited decreased range of motion due to pain and that she experienced increased pain with prolonged standing and walking. He stated that the estimates were based on the Veteran's pathology and description of symptoms, and that she complained more of pain as opposed to changes in range of motion from baseline. The VA examiner’s findings are unclear. He noted that the Veteran was not being examined immediately after repeated use over time or during a flare-up. However, when describing the limited functional ability in terms of range of motion during flare ups, he reported the same range of motion measurements for both knees of 0 to 100 degrees that were recorded at the time of the VA examination. Further, the examiner noted that the Veteran exhibited decreased range of motion due to pain and that she experienced increased pain with prolonged standing and walking, but also stated that the Veteran complained more of pain as opposed to changes in range of motion from baseline. In light of these inconsistencies, on remand the Veteran should be afforded an additional VA examination that complies with all of the requirements of Sharp in order to adequately rate the severity of her service-connected left and right knee chondromalacia patella for the entire period on appeal. The matters are REMANDED for the following action: 1. Obtain the Veteran’s CAPRI Medical records from December 2019 to the present. 2. Schedule the Veteran for an appropriate examination to assess the nature and level of severity of her service-connected left and right knee chondromalacia patella. The Veteran’s claims file, including a copy of this remand, must be made available to the examiner, who must note its review. The appropriate Disability Benefits Questionnaire should be filled out. The examiner must include all the following: a) Active range of motion testing results; b) Passive range of motion testing results; c) Weightbearing range of motion testing results; d) Nonweightbearing range of motion testing results; and e) All above-mentioned range of motion measurements on the opposite undamaged joint. If the examiner is unable to conduct one or more of the above tests or finds that it is unnecessary, the examiner must provide an explanation. In any event, the type of test performed (i.e. active or passive, weightbearing or nonweight bearing), must be specified. The examiner is asked to provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. The examiner must elicit as much information as possible from the Veteran regarding the severity, frequency, and duration of flare-ups, their effect on functioning, and precipitating and alleviating factors. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given the medical science and the known facts); by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Mohammad 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.