Citation Nr: 21014287 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 16-00 001 DATE: March 11, 2021 REMAND Entitlement to an evaluation in excess of 10 percent for right knee Osgood-Schlatter with patellar tendonitis, limitation of flexion, is remanded. Entitlement to an evaluation in excess of 10 percent for left knee Osgood-Schlatter with patellar tendonitis, limitation of flexion, is remanded. Entitlement to a compensable evaluation for left knee Osgood-Schlatter with patellar tendonitis, limitation of extension, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from September 1991 to September 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2014 and an October 2016 respective rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously remanded for further development by the Board in October 2018, including for the RO to obtain the Veteran’s outstanding treatment records and provide adequate VA examinations. 1. Entitlement to an evaluation in excess of 10 percent for right knee Osgood-Schlatter with patellar tendonitis, limitation of flexion, is remanded. 2. Entitlement to an evaluation in excess of 10 percent for left knee Osgood-Schlatter with patellar tendonitis, limitation of flexion, is remanded. 3. Entitlement to a compensable evaluation for left knee Osgood-Schlatter with patellar tendonitis, limitation of extension, is remanded. The Veteran was granted service connection for his bilateral knee disability (limitation of flexion) in a November 2012 rating decision at disability ratings of 10 percent respectively, effective, August 9, 2011, the receipt date of his claims. The Veteran subsequently file a claim seeking a rating increase in March 2014, and based on the findings of a July 2014 VA examination, the Veteran’s initial 10 percent disability ratings were continued in an August 2014 rating decision, which the Veteran is currently appealing. The Veteran filed a separate service-connection claim for left knee, limitation of flexion, in July 2016, and service connection was granted at a non-compensable rating (0 percent) in an October 2016 rating decision, which the Veteran is also appealing. As detailed in the Board’s October 2018 remand, besides obtaining the Veteran’s outstanding treatment records, the Board stated that a remand was also necessary for an adequate VA examination to determine the severity of the functional impairment of the Veteran’s service-connected bilateral knee disability, upon repetitive motion testing, during a flare-up of symptoms, and in weight-bearing and nonweight-bearing positions, which was not adequately addressed in his prior March 2016 and September 2016 respective examinations. The Veteran was subsequently provided a VA knee and lower leg conditions examination in September 2019. Unfortunately, the Board concludes that a remand is once again necessary because the requested findings concerning the Veteran’s knees remains inadequate for the purpose of readjudicating these issues. Stegall v. West, 11 Vet. App. 268 (1998). Specifically, although the Veteran reported that he experiences flare-ups during prolonged sitting and biking, the examiner did not discuss what type of increased symptoms the Veteran experiences during a flare-up OR quantify any additional limitation of motion during a flare-up, as required, pursuant to Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017). To this point, the United States Court of Appeal for Veteran’s Claims (Court) has recently provided guidance for cases involving a VA examiner’s description of additional limitation and functional impairment during a flare-up of symptoms currently and in the past under Sharp. In Cagliero v. Wilkie, No. 19-6895 (November 30, 2020), a non-precedential single-judge memorandum decision issued by the Court, provided that a Sharp-compliant examination (1) describes the increased symptoms during a flare-up and (2) describes the increased limitation of the affected joint (in degrees) during a flare-up. In the present case, the September 2019 VA examiner did not address any of these criteria, which impacts all the Veteran's appealed issues. As such, the Board finds that a remand is necessary to ensure that the Veteran is provided a contemporaneous and adequate examination which addresses the severity of his bilateral knee disability under the governing laws. The matters are REMANDED for the following actions: 1. Schedule the Veteran for an appropriate VA examination to evaluate the current severity of his service-connected bilateral knee disability. To the degree possible, it would be helpful to schedule the Veteran for a VA examination during a flare-up of his service-connected bilateral knee disability. The complete electronic record, including this Remand, must be made available to, and reviewed by the VA examiner in conjunction with the examination. All necessary studies and testing should be conducted, to include x-ray testing of both knees. Thereafter, the VA examiner is requested to address the following: (a) Fully describe the frequency and severity of ALL manifestations of the Veteran’s bilateral service-connected knee disability. Instability and subluxation of the knees must be identified and/or ruled out, to include that resulting from ligament damage and that resulting from patella damage. (b) In addition to the information requested by the standard Disability Benefits Questionnaire (DBQ) relating to the knees, the VA examiner must also describe the limitation of motion of the Veteran’s bilateral knees (specifically, limitation of flexion of both the right and left knee and limitation of extension of the left knee), respectively, in accordance with the laws pertinent to evaluating such disabilities, to include on repetitive motion testing, on active and passive motion in weight-bearing and nonweight-bearing positions, and during flare-ups of symptoms, contemporaneously. (c) Regarding the requested findings during a flare-up of symptoms, if the current examination is not being conducted during a flare-up of knee symptoms, the VA examiner is requested to convey any increased symptomatology and limited motion (the latter, expressed in degrees) during a flare-up of symptoms, based on the Veteran’s statements and other medical evidence of record, to include within his VA and/or private treatment records. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. It must be clear that the inability to provide an opinion is predicated on lack of knowledge among the “medical community at large” and not the insufficient knowledge of the specific examiner. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The examiner should ensure compliance of the directives specified in this remand are implemented so as to prevent further remand action before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 2. Upon completion of the above requested development and any additional development deemed appropriate, the Agency of Jurisdiction must readjudicate the issues remaining on appeal. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.B. King, 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.