Citation Nr: 21022240 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 15-01 390 DATE: April 15, 2021 REMANDED Entitlement to an increased rating for postoperative residuals of medial lateral meniscectomy and anterior cruciate ligament reconstruction of the right knee with osteoarthropathy currently rated as 30 percent disabling under Diagnostic Code (DC) 5261 since November 14, 2016, 20 percent disabling under DC 5010-5262, and 10 percent disabling under DC 5260 since November 14, 2016 is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1993 to May 1998. This case comes before the Board of Veterans’ Appeals (Board) from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas (hereinafter Agency of Original Jurisdiction) (AOJ)). In June 2017, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. In May 2018, the Board remanded the appeal for further development. 1. Entitlement to an increased rating for postoperative residuals of medial lateral meniscectomy and anterior cruciate ligament reconstruction of the right knee with osteoarthropathy currently rated as 30 percent disabling under DC 5261 since November 14, 2016, 20 percent disabling under DC 5010-5262, and 10 percent disabling under DC 5260 since November 14, 2016 is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the issue on appeal. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). In its May 2018 Board remand, the Board directed that the AOJ obtain a VA examination for his knee disability. Specifically, the Board directed that the Veteran should be afforded a VA examination regarding his knee condition. Concerning the Veteran’s examination, the examiner is asked to measure the Veteran’s range of motion with weight-bearing or in passive situations, as well as obtain information concerning the Veteran’s flare-ups. See Sharp v. Shulkin, 2017 U.S. App. Vet. Claims (Sept. 2017) (the Court held that, pursuant to VA regulations and the VA Clinician’s Guide, when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire whether there are periods of flare-ups and, if the answer is yes, to state their “severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, ‘per [the] veteran,’ to what extent, if any, they affect functional impairment.” In light of Sharp, a new examination is necessary. The Board specifically requested the following: In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran’s description of reduced range of motion during flares or repetitive use. In an August 2019 VA examination, the examiner failed to adequately comply with the instructions in the December 2018 remand. Specifically, the VA examiner failed to elicit a description of any reduced range of motion during flares and repetitive use from the Veteran. Instead, the VA examiner noted that It is a known and accepted medical fact that if a joint is painful from a flare up or repetitive motion or overuse, there may be a functional loss in that joint manifested by decreased range of motion, and possibly weakness, fatigability and/or incoordination. Since range of motion must be measured using a goniometer by VA regulations, joint measurements employing a goniometer would have to be obtained at the time of the flare up and/or when pain is present to document range of motion during the flareup. This is an impossible task unless the examiner is with the veteran during the flare up. Therefore, an accurate range of motion measurement during a flare up is not estimable without resorting to mere speculation for this reason. Further, based on the Court’s statement in the ruling concerning the phrase “without resort to mere speculation,” The United States Court of Veteran Claims decided in Jones v. Shinseki on March 25, 2010 that “the phrase ‘without resort to mere speculation’ cannot become a mantra that inhibits the careful consideration to which each claimant’s case is entitled.” The Court stated that the phrase should reflect the limitation of the knowledge of the medical community at large and not of a particular examiner. Resorting to mere speculation is not a limitation of the knowledge of the medical community or this particular individual examiner. The individual physicians in the medical community are able to measure the range of motion of a joint accurately. The measurement of range of motion during a flare up is infeasible because the Veteran’s range of motion of joints during a flare up cannot be measured unless an examiner is present, at the time of that flareup, with a goniometer at the ready. After reviewing the available clinical evidence, listening to and considering his/her complete history and subjective complaints, and examining the Veteran (herein referred to as “testimony”), this examiner has no factual basis to offer estimates of additional loss of function or of motion regarding repetitive use or flare ups. This is neither due to personal lack of knowledge nor lack of experience; this examiner has strong knowledge and experience in the disability field and is certainly qualified to provide the opinion expressed. As such, the examination is inadequate, and thus, there has not been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Once VA has provided a VA examination, even if it not statutorily obligated to do so, an adequate examination must be provided. Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, as the Board finds that the examiner did not elicit information regarding additional functional loss during flare-ups and repetitive use, a remand is warranted for a new examination in compliance with the holding of Sharp. The matters are REMANDED for the following action: 1. Obtain any outstanding treatment records and associate them with the claims file. 2. After completing the development above, schedule the Veteran for a VA knee examination with a different examiner to determine the nature and severity of his service-connected right knee disability. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran’s description of reduced range of motion during flares or repetitive use. Also, in order to comply with the Court’s decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the VA examination must include range of motion testing in the following areas: • Active motion; • Passive motion; • Weight-bearing; and • Nonweight-bearing. 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. The VA examiner should provide a complete rationale for any opinions provided. (continued on the next page) 3. Thereafter, readjudicate the remaining claim on appeal. If the claim remains denied, provide the Veteran with a supplemental statement of the case (SSOC) and an adequate opportunity to respond, after which the matters should be returned to the Board for further adjudication, if otherwise in order. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael J. O’Connor 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.