Citation Nr: 21011346 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 14-24 905A DATE: March 1, 2021 REMANDED Entitlement to an increase in a 10 percent rating for postoperative residuals of a torn anterior cruciate ligament and a torn lateral meniscus of the right knee is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from April 1990 to April 2000 and from August 2000 to August 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in February 2018. This case was remanded previously by the Board in an April 2020 decision for additional development. The Veteran was granted service connection for his right knee disability with an evaluation of 10 percent in a July 2000 rating decision. In a September 2012 rating decision, his 10 percent rating was reinstated based on symptomatic residuals, but a higher evaluation of 20 percent was not warranted. At his February 2018 Board Hearing, the Veteran and his representative stated they are seeking a separate 20 percent rating for the right knee for locking under Diagnostic Code 5258, in addition to the 10 percent rating for limitation of motion, which the Veteran already receives. The Veteran said this would satisfy the appeal. Subsequently, in the August 2018 Board decision, the appeal of the issue of entitlement to an increase in the 10 percent rating for residuals of a torn ACL and torn meniscus of the right knee was dismissed; a separate 20 percent rating was granted for right knee dislocated semilunar cartilage. A January 2019 rating decision assigned the 20 percent rating from September 1, 2011. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court) which, in October 2019, on the basis of a Joint Motion for Partial Remand (Joint Motion), vacated and remanded the aforementioned claim that the Board dismissed in August 2018, for further development and re-adjudication. In the April 2020 Board decision, the Board remanded this matter for a new VA examination to adjudicate the Veteran’s right knee claim as Veteran receives treatment for the right knee. See April 2020 BVA Decision. Entitlement to an increase in a 10 percent rating for postoperative residuals of a torn anterior cruciate ligament and a torn lateral meniscus of the right knee is remanded. Regrettably, a remand is necessary for further evidentiary development of the Veteran’s increased rating claim on appeal. The November 2020 VA examination did not comply with the remand directives; therefore, it must be remanded again to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). In 2017, the Court issued the decisions in Sharp v. Shulkin, 29 Vet. App. 26 (2017) concerning the adequacy of VA orthopedic examinations. The Court in Sharp held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must “elicit relevant information as to the veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flare-ups and then 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 she could not do so.” The Veteran was provided a post-remand VA examination for his right knee disability in November 2020. The November 2020 VA examination is not adequate in light of the Court’s determination in Sharp. In the November 2020 VA Examination, the Veteran report recurring right knee pain as he has aged, becoming more and more physically deconditioned. The Veteran reported flare ups of the right knee that are moderated to marked in severity depending on the activity, and they last until after Veteran rests and shakes out his knee. The Veteran stated that his knee hurts when he stands or walked for longer than 15 minutes or sits too long in one position for longer than 30 minutes. The VA examiner noted the examination was being conducted during a flare-up; however, the examiner did not specify whether the examination was medically consistent with the Veteran’s statements describing functional loss during flare-ups or not. Additionally, while the VA examiner noted that pain, weakness, or fatigability did not significantly limit functional ability during flare-ups but did not describe in terms of range of motion. See November 2020 C&P Exam. The Board emphasizes that in Sharp the Court held that the examiner must “elicit relevant information as to the veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares and then 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 she could not do so.” As such, the examiner’s failure to specify the examination’s medical consistency with Veteran’s statements regarding flare-ups and provide an adequate rationale regarding the Veteran’s limitation of motion during flare-ups renders the examination report not adequate for rating purposes. As such, this appeal must be remanded. The Board finds that the November 2020 VA examiner did not substantially comply with the remand directives of the April 2020 Board decision. Thus, a remand is necessary to obtain a new VA examination for the Veteran’s right knee disability that comply with Sharp. Stegall, 11 Vet. App. at 268. The matters are REMANDED for the following action: 1. Obtain any outstanding VA medical records and associate them with the Veteran’s claims file. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of the nature, extent and severity of his right knee problems. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Schedule the Veteran for a VA examination(s) (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the current nature and severity of his right knee disability. It is imperative that the examiner comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. The examiner should also offer an estimate as to additional functional loss flares regardless of whether the Veteran is undergoing a flare-up at the time of the examination. Further, in accord with the requirements of 38 C.F.R. § 4.59, the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint; or an explanation from the examiner that any such testing cannot or should not be conducted. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his right knee symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.