Citation Nr: 21022544 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 15-12 912 DATE: April 16, 2021 REMANDED Entitlement to a rating in excess of 20 percent for left knee meniscus injury, post-operative with instability, is remanded. Entitlement to a rating in excess of 10 percent for left knee degenerative joint disease (DJD) is remanded. REASONS FOR REMAND The Veteran had active military service from April 1984 to February 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision issued by the VA Regional Office (RO). In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge in July 2017. In December 2018, the Board remanded the issues of entitlement to service connection for a right ankle disability and an increased rating for a left knee disability for additional development. In an April 2020 rating decision, the RO granted entitlement to service connection for right ankle synovitis, which constitutes a full grant of the benefit sought on appeal. Thus, that matter is no longer in appellate status. The Board finds that additional development is required before the appeal is decided. A review of the record shows that the Veteran was last afforded a VA examination of his left knee DJD and meniscus injury, post-operative with instability (“left knee disability”), in June 2019. He reported moderate flare-ups dependent on weather or activity. Although the examiner indicated that pain significantly limited the Veteran’s functional ability with flare-ups, he declined to describe the degree of additional range-of-motion loss. He stated that he was unable to speculate because the examination was not conducted during a flare-up. The Board notes that the United States Court of Appeals for Veterans Claims (Court) held that in order for an examination to comply with 38 C.F.R. § 4.40, the examiner must express an opinion regarding functional impairment and the examiner’s determination in that regard should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Further, the Court in Sharp noted that an examiner may not decline to provide an opinion on the basis of speculation unless the examiner has considered all procurable and assembled data and offered a basis for that conclusion, and it must be apparent that the inability to provide an opinion without speculation reflects the limitation of knowledge in the medical community at large, as opposed to a limitation of the individual. Therefore, the Board finds that the June 2019 VA examination report is not in strict compliance with the Court’s decision in Sharp, and as such, is not adequate for adjudication purposes. Accordingly, on remand, the Veteran should be provided a new VA examination to determine the current level of severity of all impairment resulting from his left knee disability. The matter is REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination to determine the current level of severity of all impairment resulting from his service-connected left knee disability. The claims file must be made available to and reviewed by the examiner. Any indicated studies must be performed. The examiner should provide all information required for rating purposes, to specifically include findings in compliance with the Court’s decision in Sharp. 3. Confirm that the VA examination report and all medical opinions provided comport with this remand and undertake any other development determined to be warranted. 4. Then, readjudicate the appeal. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Ware, 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.