Citation Nr: 21014695
Decision Date: 03/15/21	Archive Date: 03/15/21

DOCKET NO. 15-06 893
DATE: March 15, 2021

REMANDED

Entitlement to an initial rating in excess of 10 percent for a service-connected left knee disability is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from November 1967 to September 1969, December 1970 to December 1973, and November 7, 1980 to November 8, 1980.

This matter was initially before the Board in August 2018, where it was remanded for additional development. Specifically, the Board determined that the Veteran should be afforded an exam to assess the current severity of his service-connect left knee disability.

Entitlement to an initial rating in excess of 10 percent for a service-connected left knee disability is remanded.

While the Board regrets further delay, the matter must be remanded for an adequate examination. 

In the Veteran’s September 2019 VA examination, the Veteran reported flare-ups in his knees. The examiner stated the exam was not being conducted during flare up and that the Veteran does not have pain, weakness, fatigability or incoordination that significantly limits functional ability with flare ups. However, the examiner reported that the Veteran’s right knee pain causes functional loss. Yet, no estimated range of motion testing was listed. Additionally, the examiner’s initial range of motion findings does not explain the Veteran’s self-described episodes chronic, “aching pain” and difficulty going down the stairs. The examiner also did not obtain information as to the frequency and duration of these types of episodes. 

The findings are not compatible with the information provided by the Veteran without further explanation. As such, the examination report must be returned as inadequate for rating purposes.  

The matters are REMANDED for the following action:

1. Schedule the Veteran for a VA examination to assess the current severity and manifestations of his service-connected left knee disability. Access to the electronic claims file must be made available to the examiner for review.

In order to comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. The examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. The examiner may comment as to whether there is any medical reason to accept or reject the Veteran’s description of motion loss during flares. If there is no pain and/or no limitation of function, such facts must be noted in the report.

Also, in order to comply with the Court’s decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the VA examination must include range of motion testing in the following areas: 

 

Active motion; 

Passive motion; 

Weight-bearing; and 

Nonweight-bearing. 

The degree at which pain begins must be documented.  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 VA examiner should provide a complete rationale for any opinions provided.

2. Readjudicate the issue on appeal. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case. 

 

T. MAINELLI

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Adeleke, Tomi

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.