Citation Nr: 21014795 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 16-00 102 DATE: March 15, 2021 REMANDED Entitlement to a rating in excess of 20 percent for a right knee disability, described as ligamental laxity and residuals of medial meniscus tear, prior to June 3, 2019, is remanded. Entitlement to a rating in excess of 10 percent for right knee degenerative joint disease, prior to June 3, 2019, is remanded. Entitlement to a rating in excess of 30 percent for degenerative joint disease, right knee status post arthroplasty since August 1, 2020 (previously evaluated as degenerative joint disease, right knee with ligamental laxity, residuals of medial meniscus tear, loss of range of motion, and painful motion) is remanded. Entitlement a rating in excess of 10 percent for a left knee disability, described as ligamental laxity, is remanded. Entitlement to a rating in excess of 10 percent for left knee degenerative joint disease, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1971 to August 1975. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an April 2014 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2018, the case came before the Board. The Board remanded the Veteran’s claims in order for the Veteran to attend an additional VA examinations. In August 2019, the RO issued a rating decision that increased the Veteran’s right knee disability to 100 percent disabling effective from June 3, 2019 which is the date of the Veteran’s total right knee replacement surgery. After the expiration of the 100 percent rating, the RO assigned an evaluation of 30 percent disabling effective from August 1, 2020. 1. Entitlement to a rating in excess of 20 percent for a right knee disability, described as ligamental laxity and residuals of medial meniscus tear, prior to June 3, 2019, is remanded. 2. Entitlement to a rating in excess of 10 percent for right knee degenerative joint disease, prior to June 3, 2019, is remanded. 3. Entitlement to a rating in excess of 30 percent for degenerative joint disease, right knee status post arthroplasty since August 1, 2020 (previously evaluated as degenerative joint disease, right knee with ligamental laxity, residuals of medial meniscus tear, loss of range of motion, and painful motion) is remanded. 4. Entitlement a rating in excess of 10 percent for a left knee disability, described as ligamental laxity, is remanded. 5. Entitlement to a rating in excess of 10 percent for left knee degenerative joint disease, is remanded. As to the issues of increased ratings for a right and left knee disability, the Board notes that the Veteran attended a VA examination for these issues in July 2019. During these examinations, the Veteran stated that he experiences flare-ups, but the examiner did not account for the Veteran’s lost range of motion when he experiences a flare-up. Accordingly, the Board acknowledges that in the case of Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court noted that for a joint examination to be adequate, the VA examiner “must express an opinion on whether pain could significantly limit” a Veteran’s functional ability, and that determination “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” Furthermore, the Court stated that the examiner must “obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the Veterans themselves.” Sharp, 29 Vet. App. at 34. The examiner must also “offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of Veterans,” and the examiner’s determination “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. Id. at 10. Thus, the Board finds this examination is inadequate and that a remand is necessary in order to provide the Veteran with a new examination. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records from April 7, 2020 to the present. 2. Schedule the Veteran for a VA examination to determine the severity of his left and right knee disabilities. The examiner should request the Veteran to identify the extent of his functional loss during flare-ups that have occurred throughout the course of the appeal and then provide range of motion estimates based on that information. *The examiner must ensure that the Disability Benefits Questionnaire(s) utilized in this examination include(s) the former and current rating criteria pertinent to the knees, as such was revised on February 7, 2021, and both versions may be utilized in rating the Veteran’s appeal. In providing all of the requested opinions, the examiner should consider the Veteran’s competent lay claims regarding the observable symptoms he has experienced. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Rescan, 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.