Citation Nr: 21012801 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 16-63 354 DATE: March 5, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for a left knee strain is remanded. Entitlement to an initial rating in excess of 10 percent for instability of the left knee is remanded. Entitlement to an initial rating in excess of 10 percent for a left ankle sprain is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1994 to August 1997, and from January 2003 to December 2004. This matter originally came before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine, which, inter alia, granted service connection for a left knee strain and left ankle sprain and assigned noncompensable ratings, effective November 27, 2011. In August 2019, the Veteran appeared for a videoconference hearing before the undersigned Veteran’s Law Judge. A transcript of the hearing is of record. In November 2019, the Board granted initial 10 percent ratings for a left knee strain and left ankle sprain and awarded a separate initial 10 percent rating for instability of the left knee. The Veteran appealed the November 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). While the matter was pending before the Court, the Veteran and VA’s General Counsel filed a joint motion for partial remand (JMPR). In October 2020, the Court granted the parties’ motion, vacated the portions of the November 2019 Board decision which denied an initial rating in excess of 10 percent for a left knee strain, left ankle sprain, and instability of the left knee and remanded the matter for actions consistent with the JMPR. 1. Entitlement to an initial rating in excess of 10 percent for a left knee strain is remanded. 2. Entitlement to an initial rating in excess of 10 percent for instability of the left knee is remanded. The Veteran contends that his left knee disability is more severe than currently rated. See December 2016 VA Form 9; August 2019 Statement in Support of Claim. The Veteran was afforded a VA examination in July 2013. The examiner noted a 1995 diagnosis of left knee strain. The Veteran reported intermittent left knee pain on a daily basis. He reported that the pain was brought on by prolonged sitting and that walking up stairs and on uneven ground caused “popping” in the knee. He indicated that he could not kneel without padding on the floor. The Veteran reported that the left knee was very tender to the knee cap. He reported his pain as 8 on a 10-point scale. He indicated that he experienced aching pain in the knee, which lasted for a few hours. However, if his knee pain was accompanied by ankle pain, he experienced sharp pain in the knee which lasted for a couple of minutes. The Veteran did not report flare-ups. On initial range of motion (ROM) testing, left knee flexion was to 140 degrees or greater, with no objective evidence of painful motion, and extension was not recorded. The Veteran was able to perform repetitive testing with 3 repetitions. On ROM after repetitive use testing, left knee flexion was to 140 degrees or greater, and extension was to 0 degrees. The Veteran was not found to have any functional loss and/or functional impairment of the left knee. However, the Veteran was found to have tenderness or pain to palpation in the left knee. Muscle strength and joint stability testing was normal. The Veteran was found to occasionally use a brace as a normal mode of locomotion, especially when mowing the grass. The Veteran was not found to have subluxation or arthritis. The Veteran was afforded another VA examination in March 2016. The examiner noted a 1995 left knee strain. The Veteran reported an increase in pain, occurring more frequently with walking and “normal daily motions.” The Veteran reported constant achy distal/lateral patella pain, noting pain as a 6-7 on a 10-point scale. The examiner noted that the Veteran ambulated with a normal steady gait without an assistive device. The Veteran reported flare-ups of pain and that his left knee frequently “locked up” with “normal daily motion,” walking, going up and down stairs, and prolonged standing or sitting over 3 to 4 minutes. The Veteran reported sharp pain as 8-9 on a 10-point scale. The Veteran reported self-treatment by massaging the knee and taking over-the-counter medication for pain. The Veteran reported that he could no longer perform repetitive kneeling or bending activities and that he could no longer run. On initial ROM, flexion was from 0 to 120 degrees and extension was from 120 to 0 degrees. Pain was noted on examination, however it was not found to result in functional loss. Evidence of pain on weight bearing was found. Objective evidence of localized tenderness or pain on palpation was found in the lateral/distal patella. The Veteran was able to perform repetitive testing with 3 repetitions. Muscle strength and joint stability testing was normal. No ankylosis or recurrent subluxation was found. The Veteran was found to occasionally use a brace as a normal mode of locomotion. Imaging studies of the knee were normal; no arthritis was found. In the JMPR granted by the Court, discussed previously, the parties agreed that the July 2013 and March 2016 VA examinations were inadequate because the examiners failed to provide an opinion as to the Veteran’s functional loss during a flare-up pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017). Additionally, the parties agreed that the VA examiners failed to provide findings related to passive motion or non-weight bearing motion and did not explain why such could not be provided. Correia v. McDonald, 28 Vet. App. 158 (2016). As such, the Veteran’s claims for increased ratings for a left knee strain and instability of the left knee are remanded for a new VA examination. 3. Entitlement to an initial rating in excess of 10 percent for a left ankle sprain is remanded. The Veteran contends that his left ankle disability is more severe than currently rated. See December 2016 VA Form 9; August 2019 Statement in Support of Claim. The Veteran was afforded a VA examination in July 2013. The examiner noted a 1995 diagnosis of a left ankle sprain. The Veteran reported ankle pain with “giving way” on a daily basis. He reported sharp and excruciating pain, which “jolt[ed]” him when it occurred and typically lasted for a “couple seconds.” The Veteran also reported pain as 8.5 on a 10-point scale. The Veteran did not report flare-ups. On initial ROM testing, left ankle plantar flexion was to 45 degrees or greater, with no objective evidence of painful motion, and dorsiflexion was to 20 degrees or greater, with no objective evidence of painful motion. The Veteran was able to perform repetitive testing with 3 repetitions. On ROM after repetitive use testing, left ankle plantar flexion was to 45 degrees or greater and dorsiflexion was to 20 degrees or greater. The Veteran was not found to have additional limitation in ROM following repetitive use testing, nor was functional loss and/or functional impairment found. The Veteran was found to have localized tenderness or pain on palpation of the joints/soft tissue in the left ankle. Muscle strength and joint stability testing was normal. The Veteran was not found to have ankylosis. The Veteran did not report using any assistive device as a normal mode of locomotion. The Veteran was not found to have arthritis in his left ankle. The Veteran was afforded another VA examination in March 2016. The examiner noted a left ankle sprain in 1995. The Veteran reported that his left ankle pain had worsened and was occurring more frequently. He reported constant throbbing left ankle anterior/lateral pain. The Veteran further reported pain as 7-8 on a 10-point scale. The examiner noted that the Veteran ambulated with a normal steady gait without an assistive device. The examiner noted the Veteran’s report of flare-ups. The Veteran reported flare-ups with ambulating 15 to 20 yards, walking after sitting, picking up children, or carrying groceries. The Veteran reported sharp pain as 9-10 on a 10-point scale during flare-ups, which returned to “baseline pain in a couple minutes, up to 30 minutes.” The Veteran also reported that his left ankle gave out randomly with walking or standing from a sitting position. He further reported left ankle swelling with ambulation for 1 to 2 hours. The Veteran reported self-treating with rest, elevating his ankle, ice and over-the-counter medication. The Veteran also reported being unable to play sports, run, play in the yard with children, or walk up several steps; he reported stiffness with normal daily activities and with sitting in his car or desk at work. On initial ROM testing, left ankle plantar flexion was to 45 degrees and dorsiflexion was to 20 degrees. Pain was noted on examination but was not found to result in functional loss. Pain on weight bearing was noted. Objective evidence of localized tenderness or pain on palpation was noted on the anterior/lateral ankle. The Veteran was able to perform repetitive testing with 3 repetitions. Muscle strength testing was normal. The Veteran was not found to have muscle atrophy or ankylosis. Left ankle instability or dislocation was suspected. The Veteran reported occasional use of braces as a normal mode of locomotion. The Veteran was not found to have arthritis in his left ankle. In the JMPR granted by the Court, discussed previously, the parties agreed that the July 2013 and March 2016 VA examinations were inadequate because the examiners failed to provide findings related to passive motion or non-weight bearing motion and did not explain why such could not be provided. Correia, 28 Vet. App. 158. Additionally, the parties agreed that the March 2016 VA examiner failed to provide an opinion as to the Veteran’s functional loss during a flare-up pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017). As such, the Veteran’s claim for an increased rating for a left ankle sprain is remanded for a new VA examination. Accordingly, the matters are REMANDED for the following action: 1. The Veteran should be afforded a VA medical examination to determine the current severity of his service-connected left knee strain with instability. Access to the Veteran’s electronic VA claims file must be made available to the examiner for review in connection with the examination. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. The examiner should test for both active and passive motion, as well as weight-bearing and non-weight bearing. If this testing cannot be conducted, the examiner should explain why. The examiner should comment on the severity of any painful motion or weakness. The examiner should also provide range of motion measurements, including at what point in the arc of motion pain limits function both regularly and during any flare-ups, even if a flare-up is not observed on that day. In addressing the nature of any disability during a flare-up the examiner must address the severity of the flare-up, the frequency and duration of the flare-up, and all precipitating and alleviating factors. 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 based on the other evidence of record and the Veteran’s statements. 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). 2. The Veteran should be afforded a VA medical examination to determine the current severity of his service-connected left ankle sprain. Access to the Veteran’s electronic VA claims file must be made available to the examiner for review in connection with the examination. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. The examiner should test for both active and passive motion, as well as weight-bearing and non-weight bearing. If this is not possible, the examiner should explain why. The examiner should comment on the severity of any painful motion or weakness. The examiner should also provide range of motion measurements, including at what point in the arc of motion pain limits function both regularly and during any flare-ups, even if a flare-up is not observed on that day. In addressing the nature of any disability during a flare-up the examiner must address the severity of the flare-up, the frequency and duration of the flare-up, and all precipitating and alleviating factors. 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 based on the other evidence of record and the Veteran’s statements. 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). K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Ruddy, 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.