Citation Nr: 21010317 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 16-08 894 DATE: February 24, 2021 REMANDED Entitlement to a rating in excess of 20 percent for service-connected left knee condition is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from December 1987 to January 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2011 rating decision issued by a Department of Veterans Affairs (VA) regional office. This matter was previously remanded by the Board in September 2018. In April 2018, the Veteran testified via video conference before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the electronic claims file. See April 2018 Board Hearing Transcript. Entitlement to a rating in excess of 20 percent for service-connected left knee condition is remanded. The Board regrets the delay associated with this remand, particularly as this matter is the subject of a prior remand. However, based on a review of the evidence of record, the Board finds that a remand is necessary to allow the Agency of Original Jurisdiction (AOJ) to conduct additional development. First, a remand is warranted to afford the Veteran with an examination to determine the current severity of his service-connected left knee condition. The Veteran was last afforded a VA examination regarding his left knee condition in October 2019. Notably, the examiner noted that there was no objective evidence of crepitus. See October 2019 VA Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ). The Board notes that, at the time of the October 2019 examination, the Veteran did not have any active medications for his left knee pain. See Columbus VA Medical Center (VAMC) records, received July 2019 and June 2020 in CAPRI. The evidence of record indicates that the Veteran’s left knee condition may have worsened since this examination. Specifically, the Veteran’s VA treatment records reveal that, in March 2020, he reported that his left knee pain had been getting progressively worse. He also reported that had felt a “snap” or “click” in his left knee. The treating physician noted crepitus on left knee and prescribed Medrol, a steroid, as well as diclofenac for pain. The prescription for diclofenac is noted as active as late as June 2020. See id. Therefore, as the Veteran’s VA treatment records indicate that his left knee condition may have worsened since the October 2019 examination, the Board finds that a new VA examination is needed to ascertain the current severity of his service-connected left knee condition. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Second, in light of Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017, a remand is necessary to allow the AOJ to obtain a retrospective opinion regarding the severity of the Veteran’s service-connected left knee condition. In Correia, the Court held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. Correia, 28 Vet. App. at 168. Here, the March 2011 and June 2014 VA examination reports did not specify whether active and passive motion were tested or whether the results provided were weight-bearing or non-weight-bearing. See March 2011 VA Knee Examination; June 2014 VA Knee and Lower Leg Conditions DBQ. Additionally, in Sharp, the Court held that, pursuant to VA regulations and the VA Clinician’s Guide, when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire whether there are periods of flare-ups and, if the answer is yes, to state their severity, frequency, and duration, name the precipitating and alleviating factors, and estimate, per the veteran, to what extent, if any, flare-ups and repetitive use over time affect functional loss. Sharp, 29 Vet. App. at 26. Further, VA examiners are expected to offer opinions on functional loss that would occur during flare-ups and repetitive use over time based on estimates derived from relevant sources, including the Veteran’s lay statements. Id. at 34. In other words, stating that the examination was not conducted during a flare-up or following repetitive use over time as the sole rationale for not addressing the functional impacts of such is not sufficient. Here, the March 2011 examination report noted that the Veteran experienced severe flare-ups, manifesting with stiffness, popping, and locking on a daily basis, and manifesting with swelling two to three times per week. However, the examiner did not address the level of functional loss that would occur during flare-ups aside from noting that such loss would occur. Additionally, the examiner did not address the functional impact of repetitive use over time, if any. See March 2011 VA Knee Examination. Likewise, the June 2014 examination report noted that the Veteran reported experiencing flare-ups. However, the examiner declined to address the functional impacts of such, stating that the Veteran was unable to replicate a flare-up during the evaluation. See June 2014 VA Knee and Lower Leg Conditions DBQ. As the March 2011 and June 2014 examination reports did not fully satisfy the requirements of 38 C.F.R. § 4.59, Correia, or Sharp, the Board finds that a remand is necessary to obtain a retrospective opinion regarding the severity of his service-connected left knee condition. Accordingly, the matter is REMANDED for the following action: 1. With the Veteran’s assistance as appropriate, obtain and associate with the electronic claims file any pertinent medical records, whether VA or private, including records relating to treatment at Columbus VAMC from June 2020 to current, and at Dayton VAMC from April 2017 to current. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any of these records are unable to be secured. 2. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination. 3. After completing the development above, and any additional development warranted by the record, schedule the Veteran for an examination with an appropriate clinician to ascertain the current nature and severity of his service-connected left knee condition. The entire claims file must be provided to, and reviewed by, the examiner, and any indicated tests, studies, or evaluations should be performed. The examiner is asked to: (a.) Obtain the Veteran’s detailed lay history, including employment and the onset and progression of symptomatology. 1. The examiner should address the Veteran’s VA treatment records, to include the March 2020 treatment records, and address his reported symptoms of left knee pain, his reported “snap” or “click” in his left knee, as well as noted crepitus on left knee. (b.) Test and document the range of motion (ROM) for the Veteran’s left knee in active motion, passive motion, on weight-bearing and non-weight-bearing, on both an initial and after repetitive use basis. The examiner must also conduct the same testing for the right knee. FOR EACH ROM, THE EXAMINER IS ASKED TO EXPLICITLY IDENTIFY THE DEGREE IN WHICH PAIN IS FIRST EVIDENCED BY THE VETERAN’S VISIBLE BEHAVIOR. (c.) Identify the nature and severity of all current manifestations of the Veteran’s service-connected left knee condition. The extent of any weakened movement, excess fatigability, and incoordination should be described. Any additional impairment due to such should be assessed in terms of the degree of additional ROM loss. Additional limitation following repetitive use over time, if any, must also be noted. (d.) If the Veteran describes flare-ups, after documenting the frequency, severity, and duration thereof, express an opinion as to whether there would be additional functional impairment during such flare-ups. The examiner should assess such impairment in terms of the degree of additional ROM loss and provide an explanation as to how such was determined. (e.) Provide a RETROSPECTIVE OPINION, utilizing the Veteran’s medical records and lay history, and opine as to the severity of the Veteran’s service-connected left shoulder, right wrist, lower back, and bilateral knee conditions from January 2010 to current. Any impairment, and any additional impairment due to repetitive use over time or flare-ups, should be assessed in terms of limitation to ROM, if possible, and the examiner should state whether such limitation is mild, moderate, or severe in nature. • If it is not feasible to perform a requested assessment to any degree of medical certainty without resort to speculation, a thorough explanation as to why the assessment cannot be performed should be provided. • Any opinion expressed by the examiner must be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. • If the examiner is unable to render any opinion requested herein, the examiner must specifically state why and provide a rationale for the determination. 4. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. If any report or opinion does not include adequate responses to the specific reports or opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Martin III, 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.