Citation Nr: 21015721 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 12-12 850 DATE: March 18, 2021 REMANDED Entitlement to a disability rating in excess of 30 percent for residuals of a right knee total knee replacement after November 1, 2018, to include whether a separate rating for right knee instability is warranted after November 1, 2018, is remanded. Entitlement to a disability rating higher than 10 percent from February 25, 2010 to September 18, 2017, for arthritis of the right knee, status post arthrotomy, with residual scar is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1967 to December 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2010 rating decision. In February 2016, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing. A transcript of that hearing is of record. The Veteran’s claims were remanded by the Board in May 2016, April 2018, and April 2020. Unfortunately, the Veteran’s claims must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claims, so he is afforded every possible consideration. 1. Entitlement to a disability rating in excess of 30 percent for residuals of a right knee total knee replacement after November 1, 2018, to include whether a separate rating for right knee instability is warranted after November 1, 2018, is remanded. 2. Entitlement to a disability rating higher than 10 percent from February 25, 2010 to September 18, 2017, for arthritis of the right knee, status post arthrotomy, with residual scar is remanded. The Board remanded the Veteran’s claims for increased disability ratings in April 2020, in part, to provide him with a new VA examination to determine the current severity of his service-connected knee disabilities and retrospective medical opinions to satisfy the requirements outlined in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Subsequently, the Veteran was afforded an August 2020 Knee and Lower Leg Conditions Disability Benefits Questionnaire. The Board finds that the examination report is inadequate to make a fully informed decision on the claims as it fails to comply with Sharp, 29 Vet. App. 26. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The August 2020 examination report indicates that the Veteran reported flare-ups that consist of unprovoked pain and difficulty walking on a decline. The examination report states that on initial range of motion testing, the Veteran had right knee flexion to 122 degrees and extension to 0 degrees. The Veteran was not experiencing a flare-up during the examination. The examiner found that pain significantly limited functional ability with repeated use or over time, and with flare-ups. When asked to describe the limited functional ability with repeated use over time and during flare-ups in terms of range of motion, the examiner provided the same range of motion measurements, 122 degrees of flexion and 0 degrees of extension, that were recorded earlier in the report based on initial range of motion testing. It is unclear to the Board how the examiner could find that the Veteran had the same range of motion during flare-ups or with repeated use over time as when his knee was not in a flare-up, when the examiner had indicated that there was additional functional loss with flare-ups or repeated use over time. Moreover, the examiner did not document any history elicited from the Veteran as to the frequency and duration of flare-ups, and alleviating factors. See Sharp v. Shulkin, 29 Vet. App. 26. Accordingly, a new examination is warranted that addresses these issues. The Board’s April 2020 remand directives also included the instruction for the Agency of Original Jurisdiction to obtain a retrospective opinion concerning the severity of the Veteran’s service-connected knee disabilities for the entire appeal period. The August 2020 medical opinion provides that an estimation of the additional loss of range of motion during a flare-up was stated on the most recent examination as the Veteran was able to maintain a flexion of 122 degrees after three repetitions. However, for the above reasons, the Board finds the estimation is inadequate. Therefore, a retrospective medical opinion is necessary. See Chotta v. Peake, 22 Vet. App. 80 (2008) (when there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from April 2020 to the present. 2. After the above development is completed, schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the current severity of his service-connected residuals of a right knee total knee replacement and arthritis of the right knee, status post arthrotomy, with residual scar. (a.) The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating his disabilities under the rating criteria. (b.) The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. • If it is not possible to provide a specific measurement 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). (c.) To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s residuals of a right knee total knee replacement and arthritis of the right knee, status post arthrotomy, with residual scar alone and discuss the effect of it on any occupational functioning and activities of daily living. (d.) 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. • If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. • If it is not possible to provide a specific measurement 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). (e.) The examiner must address the following: (i) Whether the right knee is manifested by recurrent subluxation or lateral instability with: (A) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation; (B) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation, or unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation; or (C) sprain, incomplete ligament tear, or complete ligament tear causing persistent instability without prescribed assistive device or bracing for ambulation. (ii) Whether the right knee is manifested by patellar instability with: (A) a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker; (B) a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker; or (C) a diagnosed condition that does not require a prescription from a medical provider for a brace, cane, or walker. (f.) A retrospective medical opinion must also be provided, as follows: Based upon the January 2017 VA examination results and review of the treatment records, the examiner is asked to address the following: (i) Whether the range-of-motion testing results would be improved or worsened on passive range-of-motion testing. If worse than what was recorded in the January 2017 examination report, the examiner should provide estimated results, to the extent possible. (ii) Clarify whether the range-of-motion testing involved weight-bearing, and state whether the results would be worse if conducted in weight-bearing or vice versa. If the results would have been worse than what was recorded in the examination report, the examiner should provide estimated results, to the extent possible. (iii) Describe the severity, frequency, and duration of flare-ups, their effect on functioning, and precipitating and alleviating factors. The examiner must provide an estimate of additional loss of range of motion during a flare-up. If the examiner is unable to provide such an estimate, the examiner must explain why the available information, including the Veteran’s own statements, is not sufficient for that purpose. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean Mussey, 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.