Citation Nr: 21012863 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 17-56 364 DATE: March 5, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for left knee instability prior to October 1, 2019, and a compensable rating thereafter is remanded. Entitlement to a compensable disability rating for limitation of extension of the left knee is remanded. Entitlement to a disability rating in excess of 10 percent for limitation of flexion of the left knee is remanded. REASONS FOR REMAND The Veteran served on active duty from October 2001 to May 2002 and July 2002 to April 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran increased ratings for his service-connected left knee disability. A Board hearing was held in October 2020. A transcript is of record. When, as here, a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran was afforded VA examinations in December 2015 and November 2017 to assess the severity of his left knee disability. Both examiners noted that the Veteran had flare-ups. See December 2015 and November 2017 VA examination reports. Indeed, the Veteran has described the impairment as a decreased range of motion. Id.; See Board hearing Tr. at 6. Both examiners indicated that the examination was not conducted when the Veteran was experiencing a flare-up and opined that any prediction of decreased range of motion would be speculation. Id. The Court of Appeals for Veterans Claims (Court) held that a VA examination is inadequate when the VA examiner does not elicit relevant information as to the Veteran's flares or ask him to describe additional functional loss, if any, he suffered during flares and then does not "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 [he or she] could not do so." Sharp v. Shulkin, 29 Vet. App. 26, 35 (2019). As such, the December 2015 and November 2017 VA examinations are inadequate for rating purposes. Id. On remand, the Veteran must be afforded a new examination to determine the severity of this left knee disability, to include any loss of range of motion during flare-ups. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his left knee disability that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. Thereafter, schedule the Veteran for appropriate examination to determine the current nature and severity of his left knee disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joint involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. 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 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. 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 medical science and the known facts) or 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). 3. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Strickland 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.