Citation Nr: 21015442 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 13-09 502 DATE: March 17, 2021 REMANDED Entitlement to an evaluation in excess of 10 percent for right knee osteoarthritis and tendonitis is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1994 to September 1997. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2017, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. By way of history, in August 2017, the Board remanded this case and instructed the Agency of Original Jurisdiction (AOJ) to obtain identified private treatment records and a VA examination. Following a February 2018 VA examination, in an October 2018 Decision, the Board denied the Veteran’s increased rating claim on appeal. The Veteran appealed the Board’s decision to the U.S. Court of Appeals for Veterans Claims (Court). In a June 2019 Order, the Court vacated the Board’s October 2018 decision and remanded for readjudication in compliance with the Joint Motion for Remand (JMR). In pertinent part, the JMR found that the Board erred by failing to provide the Veteran with an adequate medical examination. Specifically, the Court held that the examiner did not elicit relevant information as to the Veteran’s reported flare-ups, and provide an estimate of further loss of motion based on all the evidence of record, including the Veteran’s lay statements. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Additionally, the JMR found that the Board erred by not discussing whether the Veteran was entitled to an increased rating based on functional loss. The Court further found that the Board did not provide an adequate statement of reasons or bases when it denied a separate compensable rating for right knee instability. Thereafter, the Board remanded this case in December 2019 to obtain a VA examination. The Board notes that the requested VA examination was obtained in December 2019. The claim was again remanded in September 2020. Right Knee Disability As noted above, the Veteran underwent a VA examination in December 2019. The Veteran reported flare-ups and functional loss described as limitation of activities due to pain, including standing and walking for more than 20 minutes, kneeling, squatting, climbing stairs and running. Range of motion (ROM) testing revealed flexion to 115 degrees and extension to 0 degrees. Pain was noted as exhibited during flexion. The examiner also noted objective evidence of mild localized tenderness or pain to palpation of the joint affecting the anterior and medial knee. Repetitive use testing was noted to reduce flexion to 110 degrees with no change in extension. In addition, the examiner noted that during repetitive use testing, pain was the factor that caused additional loss in flexion. The examiner noted that the Veteran was not being examined following repeated use over time or during a flare-up, but did note that during both situations, pain caused functional loss. In terms of whether repeated use over time or flare-ups caused any additional loss of ROM, the examiner stated that no further ROM loss was anticipated during those scenarios. Instead, the examiner stated that the only additional symptom following repeated use over time or during flare-ups was increased pain. Accordingly, the examiner stated that estimating additional loss of ROM was not warranted. The Board finds the December 2019 VA examination report inadequate. Specifically, the Board finds that the examiner provided conflicting statements with regard to functional loss. In this regard, the examiner found that pain caused functional loss during repetitive use testing, and noted that the additional loss of flexion was due to pain. However, when asked to estimate any additional loss of ROM following repeated use over time or during a flare-up, the examiner stated that no further ROM loss was anticipated as the only additional symptom would be pain. Therefore, the examiner has provided conflicting statements as to whether pain, including during a flare-up or following repetitive use, results in any further loss of function, including with regard to flexion. Accordingly, the Board finds that the December 2019 VA examination does not comply with the requirements outlined in Sharp v. Shulkin, and a remand is necessary to obtain another VA examination. The matter is REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran’s VA treatment facilities, and all private treatment records from the Veteran not already associated with the file. 2. Thereafter, the Veteran should be afforded a VA examination with an appropriate examiner to determine the current nature and severity of his service-connected right knee disability. The evidentiary record, including a copy of this Remand, must be made available to and reviewed by the examiner. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. After the record review, and a thorough examination and interview of the Veteran, the VA examiner should offer his/her opinions with supporting rationale as to the following inquiries: a) The examiner should describe all pertinent symptomatology associated with the Veteran’s right knee disability. b) The extent of any pain, incoordination, weakened movement, and excess fatigability on use should also be described by the examiner. If feasible, the VA examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. c) The examiner should express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups, and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. The VA examiner should put forth best efforts in estimating the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss based on all information procured from relevant sources, including the Veteran’s lay statements. If the VA examiner is unable to report the degree of additional range of motion loss during a flare-up, the VA examiner must explain why it is not feasible to render such an opinion; however, the VA examiner should not provide as reason that at the time of the examination, the Veteran is not experiencing a flare-up or being observed after repeated use over time. A detailed rationale for the opinions must be provided. If the examiner is unable to offer a requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lamb, 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.