Citation Nr: 21014009 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 17-14 002A DATE: March 11, 2021 REMANDED Entitlement to an initial disability rating in excess of 10 percent for service-connected right knee degenerative arthritis is remanded. Entitlement to an initial disability rating in excess of 10 percent for service-connected left knee degenerative arthritis is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1971 to January 1972, as well as additional service in the Army Reserves. He testified at a hearing before the undersigned Veterans Law Judge in October 2019. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). It was previously before the Board in February 2020 where the claims were denied. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In September 2020, the Court granted a Joint Motion for Partial Remand (JMR) in which the parties agreed to vacate the February 2020 decision and remand the matters back to the Board. While the Board regrets further delay, the Veteran’s increased rating claims for his service-connected bilateral knee disabilities must be remanded to the RO for development consistent with the Court’s JMR. The Board also notes that, while its previous decision remanded several other claims, development on those claims is still being conducted by the RO. If any benefit being sought on those claims remains denied, they will return to the Board at a later date. In its previous denial, the Board relied on the findings of a February 2018 VA examiner who noted that the Veteran experienced functional loss with repetitive use over time in both knees, and that this functional loss would contribute to “difficulty bending, standing, and walking for long periods.” Despite these findings, the examiner indicated that he was unable to describe the Veteran’s functional loss in terms of range of motion for either knee without resorting to mere speculation “because there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions.” The Court has held, however, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), that direct observation of functional impairment is not a prerequisite to offering an opinion. Id. at 35. As the examiner’s language in the February 2018 examination is identical to the language the Court found to be inadequate, remand is warranted for a new examination that complies with Sharp. The matter is therefore REMANDED for the following actions: Schedule the Veteran for a VA ¬¬¬knee examination to determine the current symptoms, level of severity, and functional impairment associated with his service-connected bilateral knee disabilities. The claims file should be reviewed by the examiner. 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 and after repetitive use over time. If it is not possible to specifically estimate knee range of motion during a flare-up and after repetitive use over time without speculation, the examiner is asked to opine as to whether during these conditions flexion of the knee would be limited to 30 degrees or less, or extension of the knee would be limited to 15 degrees or more; if limitation would be greater than this, that should be stated. If this cannot be accomplished 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) and explain why that is the case. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Scarduzio, 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.