Citation Nr: 21015365 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 13-03 760 DATE: March 17, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for service-connected left knee strain is remanded. Entitlement to a disability rating in excess of 10 percent for service-connected right knee strain is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1983 to April 2006. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2009 rating decision from the Department of Veterans Affairs (VA) Regional office (RO) in Los Angeles, California. The Veteran testified at a Board Video-conference hearing before the undersigned Veterans Law Judge in September 2015. A transcript of the hearing was associated with the Veteran’s claims file. In January 2016 and September 2018, the Board remanded the above matters for further development. The matters have returned to the Board. Increased Rating for Service-Connected Right and Left Knees. The Veteran has contended that he is entitled to an increased rating for both his right and left knee disabilities. Unfortunately, the Board must remand these matters to assure the Veteran receives an adequate examination that accurately reflects the nature and severity of his disability. The prior remand order in September 2018 instructed the AOJ to obtain outstanding records and provide the Veteran with a new examination for his knees. It was noted that “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.” This instruction stems from a requirement found in the United States Court of Veterans Appeals (Court) decision Sharp v. Shulkin, which found eliciting this information was a “critical question in assessing the adequacy of an examination.” 29 Vet. App. 26, 34-36 (2017). Without such an inquiry the Board cannot comment as to whether the examiner obtained all procurable information before making a determination that it was not possible to estimate the Veteran’s range of motion. See Sharp at 33 The March 2019 examination provided upon remand did not meet this requirement. Instead, the examiner stated it was not possible to provide such an estimate without resorting to speculations because “because there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions.” This is the same language the Court rejected in Sharp as being inadequate because it did not demonstrate the examiner obtained all procurable information before making a determination that such an opinion is not possible. Id. The examiner did provide an additional explanation in the Remarks section of the examination report, stating that an estimation would be speculation if he did not personally observe the flareup and that no one could provide given the facts and the examination given. This implies that without direct observation such a determination is not possible. If there are facts specific to this Veteran’s case that make such an estimation impossible, the examiner did not provide that information. It is unclear based on the examiner’s statement if the examiner obtained all procurable information before making a determination that it was not possible to estimate the Veteran’s range of motion. Therefore, a remand to obtain a new examination is necessary. The Board also notes that more than a year and a half passed between the March 2019 examination and recertification of the appeal to the Board. During this period, additional treatment records have been associated with the claims file that indicate the Veteran’s condition has worsened. Notably, an x-ray from November 2019 indicated there had been worsening in the left knee since the prior x-ray in October 2019 and that a total knee arthroplasty was radiographically indicated. As such, a new examination, not merely an addendum opinion, is warranted to ensure the VA has contemporaneous medical examination to evaluate the Veteran’s disability rating. Green v. Derwinski, 1 Vet. App. 121 (1991). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the Veteran’s claims file. 2. Schedule the Veteran for an examination to determine the current severity of his service-connected left and right knee strain. 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. To the extent possible, the examiner should identify any symptoms and functional impairments due to the left and right knee disabilities and discuss the effect of the Veteran’s disabilities on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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). It is not sufficient to state that a lack of observation of a flare up makes it impossible to provide the requested information. If there are facts specific to the Veteran’s case that make it impossible to provide the requested information, those facts must be commented on by the examiner. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Reed, 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.