Citation Nr: 21015915 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 16-06 483 DATE: March 18, 2021 REMANDED Entitlement to an increased rating in excess of 20 percent for left knee instability is remanded. REASONS FOR REMAND The Veteran had active duty in the United States Air Force from March 1973 to March 1977 and from July 1979 to July 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In January 2015 the Veteran submitted a notice of disagreement (NOD) and in January 2016 the RO issued a statement of the case. In February 2016 the Veteran perfected a timely substantive appeal. In a September 2018 decision, the Board remanded this issue for additional development. As set forth in more detail below, a review of the available record shows that not all the Board’s remand instructions have been fully completed. Under these circumstances, another remand is unfortunately required before the Board can adjudicate the left knee instability issues. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to an increased rating in excess of 20 percent for left knee instability is remanded. The Veteran is seeking a higher disability rating for his left knee disability. Specifically, he contends that his disability is more severe than reflected by his currently assigned disability rating because his knee shows instability when walking, stairs, or trying to stand up. See January 2015 NOD. As noted above, in a September 2018 decision, the Board remanded this claim for additional development. Specifically, the Board instructed the RO to obtain a new VA examination. The remand instructions provided that 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). Pursuant to the remand directives, in July 2019, the Veteran was afforded a VA examination. The Veteran reported flareups that are unbearable and result in him being unable to perform any weightbearing activities. He avoids all stairs “up or down.” He tries to avoid inclines. He does not walk long distances. On examination, the examiner asserted that he was unable to say whether pain, weakness, fatigability, or incoordination limit functional ability during flareups. He asserted that there is no objective basis for ROM during flare-ups and there is nothing to rely on regarding giving a numerical ROM. Following an examination of the Veteran, review of subjective complaints, and pertinent records, there is no basis to offer a loss of function or motion regarding repetitive use or flareups. Unfortunately, the Board finds this VA opinion in adequate for adjudicative purposes. See Rodriguez-Nieves v. Peake, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet. App. 303 (2007). Here, although the examiner notes reviewing the claims file and subjective complaints of the Veteran, he bases his rationale on there being no “objective” evidence on which to base ROM during flare-ups. This explanation fails to address the Veteran’s competent lay assertions regarding functional limitations during flareups, to include an inability to do steps, perform any weight bearing activities and walk long distances. In addition, the July 2019 remand instructions indicated that, should the examiner be unable to speculate ROM, he “must” explain whether such need to speculate is due to a deficiency in the state of general medical knowledge, a deficiency in the record, or the examiner does not have the knowledge or training. Here, the examiner has not addressed whether there is a deficiency in the state of general medical knowledge, what additional facts would be required, or whether he lacks the knowledge or training to provide an estimated ROM. The matters are REMANDED for the following action: 1. The AOJ should obtain all outstanding VA treatment records and any private treatment records identified by the Veteran. All obtained records should be associated with the evidentiary record. 2. After all outstanding treatment records have been associated with the claims file, schedule the Veteran for an appropriate VA examination to determine the nature and severity of his left knee disability. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. All testing deemed necessary to rate the left knee disability under the criteria of the VA rating schedule must be conducted and the results reported in detail. The examiner should test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing, for the left knee disability. The examiner should comment as to the extent of any painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during flare-ups, expressed as additional range of motion loss, if possible. 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. In doing so, the examiner should elicit from the Veteran a complete history of any flare-ups of his left and right knee disabilities. The examiner should inquire as to the frequency, duration, characteristics, severity, and functional loss during periods of flare-ups of the Veteran’s left knee disability. The examiner should describe the additional loss in degrees or percentage. (Continued on the next page)   In rendering the above requested opinion, the examiner should derive his or her estimate from relevant sources within the claims file, including private treatment records and lay statements of the Veteran. If the examiner is unable to do so, the examiner should indicate that all procurable data was considered (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. It is insufficient to conclude that the requested opinion cannot be rendered without resorting to speculation based solely on the fact that the VA examination was not performed during a period of flare-up or based solely on objective evidence. A rationale for all opinions must be provided. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kaufer, 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.