Citation Nr: 21013975 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 14-31 400 DATE: March 11, 2021 REMANDED Entitlement to an initial disability rating in excess of 10 percent prior to January 14, 2016 for left knee, status-post ACL/MCL and meniscus tear/repair with surgical scars, and in excess of 20 percent from January 14, 2016, forward, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1984 to May 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2011 rating decision. In April 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a video-conference hearing. A transcript of that hearing is of record. The Veteran’s claim for an increased rating was previously remanded by the Board in June 2018 for further development. The above issues were also remanded in June 2020. While on remand, a January 2021 rating decision granted service connection for the Veteran’s left knee strain with meniscal tear, anterior cruciate ligament tear and degenerative arthritis (instability) and assigned a 20 percent disability rating, effective December 27, 2019, and a 10 percent rating, effective September 22, 2020, under Diagnostic Code 5257. 1. Entitlement to an initial disability rating in excess of 10 percent prior to January 14, 2016 for left knee, status-post ACL/MCL and meniscus tear/repair with surgical scars, and in excess of 20 percent from January 14, 2016, forward, is remanded. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claim on appeal, so the Veteran is afforded every possible consideration. The Veteran’s claim for an increased rating was remanded in June 2020, in part, to obtain a current VA examination to evaluate the nature and severity of his disability as the December 2019 VA Knee and Lower Leg Conditions Disability Benefits Questionnaire was deemed inadequate. Pursuant to the remand, the Veteran was afforded a September 2020 VA Knee and Lower Legs Conditions Disability Benefits Questionnaire. For the reasons discussed below, the Board finds that the VA examination is inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Using the same language as contained in the December 2019 examination report, the September 2020 examination report does not provide the required information concerning severity, frequency, and duration of the Veteran’s left knee flare-ups, the alleviating factors, or the additional loss of range of motion during a flare-up. Therefore, a new VA examination must be provided to comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017). As noted in the most recent Board remand, VA examiners are required to obtain information from the Veteran as to the severity, frequency, and duration of flare-ups, as well as precipitating and alleviating factors, and the extent of functional impairment. Sharp, 29 Vet. App. at 32. VA examiners are also required to estimate the additional loss of range of motion during a flare-up based on all procurable information from the record, as well as the Veteran’s own statements. Id. at 34-35. If an estimate cannot be provided without resort to speculation, it must be clear whether this is due to a lack of knowledge among the medical community at large, or insufficient knowledge of the specific examiner. Id. at 36. The September 2020 examination report states that the Veteran reports left knee flare-ups. In particular, the Veteran advised that activity worsens his left knee aches and he has frequent swelling of the left knee. The Veteran also provided that he has left knee pain that progressively worsens with weight-bearing activities, including prolonged walking, standing, ascending and descending stairs, entering and exiting motor vehicles, and during impact activities. The examination report notes that the examination was not being performed during a flare-up. Further, the examination report demonstrates that pain, weakness, fatigability, and incoordination do not significantly limit functional ability with flare-ups and an estimation of the additional loss of range of motion during a flare-up was not provided. The examiner stated that a flare-up is not directly observed during the examination and the provided medical records make no specific references to flare-up frequency, duration, or severity of decreased range of motion in degrees. The examiner indicated that there was no basis to offer an opinion regarding additional loss of function or motion on flare-ups after the examination of the Veteran, listening to his complete history and subjective complaints, and a review of the medical records. The Veteran’s claims folder contains a January 2021 addendum medical opinion submitted by the same examiner that conducted the September 2020 examination. The examiner stated that repetitive motion symptoms are not noted as directly observed during the Veteran’s examination and the provided medical records make no specific reference to symptoms with repetitive motion of the joint that would allow for a determination of the severity of decreased range of motion in degrees. After a review of the examination of the Veteran, his statement, complete history and subjective complaints, combined with a review of the medical records, the examiner advised that there was no basis to offer additional losses of function or motion when it comes to repetitive use. The January 2021 addendum medical opinion further advises that the Veteran states that flare-ups of the condition occur, and a flare-up was noted as directly observed during the examination. The provided medical records do not make a specific reference to flare-up frequency, duration or severity of decreased range of motion in degrees. After a review of the examinations of the Veteran, his statement, complete history and subjective complaints, combined with a review of the medical records, the examiner advised that there was no basis to offer additional losses of function or motion on flare-up. It is not apparent why the examiner could not obtain information concerning any additional functional loss or additional loss of range of motion based on the Veteran’s statements describing the flare-ups. Should the new VA examination be conducted while the Veteran is not experiencing a flare-up of his left knee, the estimation of additional functional loss and additional loss of range of motion during a flare-up must be made after obtaining information concerning the severity, frequency, and duration of flare-ups, as well as precipitating and alleviating factors. The Veteran’s claim for an increased rating was also remanded in June 2020 to obtain a retrospective medical opinion concerning any additional degrees of limited motion caused by functional loss during a flare-up as he reported flare-ups on the December 2019 VA Knee and Lower Leg Conditions Disability Benefits Questionnaire and August 2010 examination report. In response, a January 2021 medical opinion states that an opinion was not requested, and clarification and resubmission is necessary before an opinion can be provided. Again, because the above examination reports do not contain an estimation of the additional loss of range of motion during a flare-up, a retrospective medical opinion is necessary to capture the severity of the Veteran’s left knee disability. See Chotta v. Peake, 22 Vet. App. 80 (2008) (when there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) due to service-connected disabilities is remanded. The Board finds that the issue of entitlement to a TDIU rating is dependent on the outcome of the Veteran’s claim for an increased rating that is remanded herein as any potential increased rating of a remanded issue could result in a higher overall disability rating. Therefore, the issue of entitlement to a TDIU rating is inextricably intertwined with the issue on appeal. See 38C.F.R. §4.16(a); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Accordingly, it must be remanded as well. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from September 2020 to the present. 2. After the above development is completed, schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician, other than the clinician that performed the December 2019 and September 2020 examination, to determine the current severity of his service-connected left knee, status-post ACL/MCL and meniscus tear/repair with surgical scars. (a.) The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating his disability under the rating criteria. (b.) The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. 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). (c.) To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s left knee, status-post ACL/MCL and meniscus tear/repair with surgical scars alone and discuss the effect of it on any occupational functioning and activities of daily living. (d.) The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. 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). (e.) The examiner must provide a retrospective medical opinion, as best as can be ascertained from the Veteran’s self-reports as well as from clinical records and other evidence, including VA examination reports. The retrospective opinion must estimate any additional degrees of limited motion caused by functional loss during a flare-up. The Veteran reported flare-ups of his left knee, status-post ACL/MCL and meniscus tear/repair with surgical scars in the September 2020 VA Knee and Lower Legs Conditions Disability Benefits Questionnaire, December 2019 VA Knee and Lower Legs Conditions Disability Benefits Questionnaire, and August 2010 examination report. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean Mussey, 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.