Citation Nr: 21010538 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 17-60 089 DATE: February 25, 2021 REMANDED Entitlement to an evaluation in excess of 10 percent for a left knee disability, to include degenerative arthritis and left knee bone infarct in posterior medial femoral condyle with Baker’s cyst, is remanded. Entitlement to a temporary total rating for left knee replacement surgery under 38 C.F.R. § 4.30 is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1997 to August 2001 and from March 2003 to June 2003. This matter comes before the Board of Veteran's Appeals (Board) on appeal from an October 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a December 2019 decision, the Board denied the Veteran’s claim of entitlement to an evaluation in excess of 10 percent for a left knee disability, to include degenerative arthritis and left knee bone infarct in posterior medial femoral condyle with Baker’s cyst. See 12/11/2019 BVA Decision. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2020 Order, the Court set aside the Board's December 2019 decision in part, granted the parties' Joint Motion for Partial Remand (JMR), and remanded the case to the Board for readjudication in compliance with the JMR. See 10/05/2020 CAVC Decision. The parties agreed that remand was warranted because the Board provided an inadequate statement of reasons or bases for its decision and failed to ensure that VA satisfied its duty to assist. See Allday v. Brown, 7 Vet. App. 517, 527 (1995); see also 38 U.S.C. § 7104(d)(1); 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). First, the Board failed to analyze or discuss pertinent evidence of record regarding the Veteran’s left knee disability. In this regard, the Board: (1) recited the Veteran’s claim and found that the rating code should be changed to Diagnostic Code (DC) 5003; (2) discussed the law regarding musculoskeletal disabilities; and (3) concluded, without analysis of the evidence, that the preponderance of the evidence was against a rating in excess of 10 percent for a left knee disability. Specifically, the Board did not discuss or analyze the substance of the Veteran’s lay testimony, and it did not discuss a March 2018 VA examination report. Next, the Board erred by failing to address all claims reasonably raised by the record – specifically, the Veteran’s May 2019 claim for a temporary total rating for left knee replacement surgery under 38 C.F.R. § 4.30. The evidence of record reveals that the Veteran underwent left knee replacement surgery in August 2019. 08/30/2019 VAMC Report of Hospitalization. However, the VA treatment records related to the Veteran’s left knee replacement surgery are incomplete, as the complete records are only accessible through Vista Imaging. See 09/05/2019 CAPRI at 48, 81, 83, 114; see also 06/29/2020 CAPRI at 7, 12, 15, 16, 21. Pursuant to 38 C.F.R. § 3.159(c)(2), "VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency," including VA treatment records. As the complete records related to the Veteran’s left knee replacement surgery are not associated with the record and the Board has no way to access them through VISTA, a remand is required to associate these VA treatment records with the claims file. Finally, the Board failed to ensure that VA satisfied its duty to assist by providing an adequate VA examination under Sharp. See Sharp v. Shulkin, 29 Vet. App. 26, 32-33 (2017); see also Jones v. Shinseki, 23 Vet. App. 382, 389-90 (2010). In this regard, the March 2018 VA examiner’s response to whether “pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time” was “unable to say w/o mere speculation.” See 03/29/2018 C&P Exam. Although the law does not categorically forbid speculative medical opinions, two criteria must be met for an examiner to make such an opinion: (1) It must be clear that the examiner has “considered all procurable and assembled data before stating that an opinion cannot be reached”; and (2) the examiner must explain the basis for his or her conclusion that a non-speculative opinion cannot be offered. Sharp, 29 Vet. App. at 33. However, in this case, there is no indication that the examiner asked the Veteran to describe his range of motion after repetitive use over time or attempted any other means by which to ascertain range of motion results. Further, the examiner did not state that range of motion results were beyond the limits of knowledge in the medical community at large. Thus, on remand, a new VA examination or addendum opinion should be obtained that complies with Sharp. These matters are REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding, pertinent treatment records that are located in records systems other than CAPRI, such as Vista Imaging, to include all records related to the Veteran’s August 2019 left knee replacement surgery and any subsequent period of convalescence. See 09/05/2019 CAPRI at 48, 81, 83, 114; see also 06/29/2020 CAPRI at 7, 12, 15, 16, 21. 2. After all development in Directive 1 has been completed, schedule the Veteran for an appropriate VA examination to determine the current severity and symptomatology of his left knee disability. The claims file must be made available to the examiner and all necessary testing should be conducted. The clinician is to 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 VA clinician must review all relevant evidence in the claims file, including a complete copy of this remand and the October 2020 JMR. **As directed in the October 2020 JMR, the clinician is asked to provide an opinion regarding whether, and to what extent, the Veteran experiences functional loss of the left knee due to pain, weakness, fatigability, or incoordination during a flare-up or with repeated use over a period of time. To the extent possible, the clinician should estimate and express any additional loss in terms of additional degree of limited motion during a flare-up or after repeated use over time, based on the other evidence of record and the Veteran’s lay statements.** If the Veteran describes experiencing flare ups, identify the: (a.) frequency; (b.) duration; (c.) precipitating factors; and (d.) alleviating factors. Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that during a flare-up, range of motion for flexion is additionally limited to 30 degrees. Please explain why or why not. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups and with repeated use over time based on the other evidence of record and the Veteran’s statements. A comprehensive rationale for all opinions is to be provided. If it is not possible to provide a specific measurement 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). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Tremont 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.