Citation Nr: 21022461 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 15-23 394 DATE: April 15, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for the Veteran's service-connected pre-patellar bursitis of the bilateral knees, for the period prior to March 4, 2019, is remanded. Entitlement to a disability rating in excess of 30 percent for the Veteran's service-connected left knee degenerative arthritis, for the period beginning March 4, 2019, is remanded. Entitlement to a disability rating in excess of 30 percent for the Veteran's service-connected right knee degenerative arthritis, for the period beginning March 4, 2019 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from June 1991 to November 1998. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a May 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board denied the Veteran’s above claim in a November 2019 decision. The Veteran then appealed to the United States Court of Appeals for Veteran’s Claims (CAVC), and in September 2020 CAVC vacated the November 2019 Board decision, granted a joint motion for remand, and returned the case to the Board for action consistent with the joint motion for remand. Bilateral Knees While the Veteran was provided with April 2013 and March 2019 VA examinations regarding his knee disabilities, these examinations are inadequate for rating purposes. In proffering their opinions, the April 2013 examiner failed to evaluate the Veteran’s functional loss during flare-ups. Further the March 2019 VA examiner failed to describe the point in the Veteran’s range of motion that limitation of motion was attributable to the Veteran’s pain and did not adequately elicit information to describe the Veteran’s limitation of motion during flare-ups and after repeated use over time. As such, the VA examiners did not adequately assess the Veteran’s functional loss of his bilateral knee disabilities in compliance with the holdings in DeLuca v. Brown, 8 Vet. App. 202, 206 (1995), Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Therefore, the Board finds an additional examination is required to adequately assess the Veteran’s bilateral knee disabilities. The matters are REMANDED for the following action: Schedule the Veteran for an appropriate VA examination, with an examiner who has yet to examine the Veteran, to determine the current nature and severity of his bilateral knee disabilities. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed (a.) The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. 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 examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. (b.) The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If the Veteran is not currently experiencing a flare-up, then based on relevant information elicited from the Veteran, a review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran’s functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. [The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran.] (c.) To the extent possible, the examiner should identify any symptoms and functional impairments due to the bilateral knee disabilities and comment on the effect of these disabilities on any occupational functioning and activities of daily living. (d.) Additionally, if possible, based on the Veteran’s lay statements and the other evidence of record, the examiner is instructed to provide a retrospective opinion estimating the severity of the Veteran’s pre-patellar bursitis and any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time for the period prior to March 4, 2019. (e.) 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). The examiner must provide a complete rationale for all proffered opinions. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete answer as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Gresham 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.