Citation Nr: 21024144 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 06-26 856 DATE: April 22, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent prior to January 13, 2012; in excess of 20 percent from January 13, 2012, to October 20, 2016; in excess of 30 percent from October 21, 2016, to April 14, 2019; in excess of 10 percent from April 15, 2019, to May 2, 2019; in excess of 20 percent from May 3, 2019, to June 19, 2019; and in excess of 30 percent thereafter for service-connected left knee disability based on limitation of extension, to include the propriety of the reduction from 30 percent to 10 percent, effective April 15, 2019, is remanded. Entitlement to an initial rating in excess of 10 percent from December 11, 2018, for service-connected left knee disability based on limitation of flexion is remanded. Entitlement to an initial rating in excess of 10 percent prior to January 13, 2012; in excess of 20 percent from January 13, 2012, to October 20, 2016; in excess of 30 percent from October 21, 2016, to April 14, 2019; in excess of 10 percent from April 15, 2019, to May 2, 2019; in excess of 20 percent from May 3, 2019, to June 19, 2019; and in excess of 10 percent thereafter for service-connected right knee disability based on limitation of extension, to include the propriety of the reduction from 30 percent to 10 percent, effective April 15, 2019, is remanded. Entitlement to an initial rating in excess of 10 percent from December 11, 2018, for service-connected right knee disability based on limitation of flexion is remanded. Entitlement to a compensable rating prior to December 19, 2014, and in excess of 10 percent thereafter for service-connected right hip disability based on limitation of abduction is remanded. Entitlement to an initial rating in excess of 10 percent prior to December 19, 2014, and a compensable rating thereafter for service-connected right hip disability based on limitation of flexion is remanded. Entitlement to an initial compensable rating for service-connected right hip disability based on limitation of extension is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to April 5, 2015, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1986 to March 1990. In February 2019, the Board issued a decision that, in pertinent part, (1) denied a compensable rating prior to December 19, 2014, and in excess of 10 percent thereafter for service-connected right hip disability based on limitation of abduction; (2) denied an initial rating in excess of 10 percent prior to December 19, 2014, and a compensable rating thereafter for service-connected right hip disability based on limitation of flexion; (3) denied an initial compensable rating for service-connected right hip disability based on limitation of extension. The Board also remanded the Veteran’s claims for higher ratings for his service-connected bilateral knee disabilities based on limitation of motion, as well as his claim for TDIU prior to April 5, 2014, to the agency of original jurisdiction (AOJ) for additional development consistent with the terms of an April 2018 Joint Motion for Partial Remand (JMPR). The Veteran appealed the Board’s decision with respect to the denial of increased ratings for his service-connected right hip disability based on limitation of abduction, flexion, and extension to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 Memorandum Decision, the Court vacated the February 2019 decision, and remanded the appeal for further development consistent with the Memorandum Decision. Following the development requested in the February 2019 remand, the AOJ issued a rating decision in April 2019 that reduced the 30 percent disability ratings assigned to the Veteran’s bilateral knee disabilities based on limitation of extension to 10 percent disabling, effective April 15, 2019. As reflected on the title page, the Board has added to the propriety of these reduction to the issues on appeal. In the April 2019 rating decision, the AOJ also reinstated the Veteran’s 10 percent disability ratings for his bilateral knee disabilities based on limitation of flexion under Diagnostic Code 5260, effective December 1, 2018. As the reinstatement of the 10 percent disability ratings based on limitation of flexion under Diagnostic Code 5260 was based on the development requested in the Board’s February 2019 remanded, the Board has assumed jurisdiction over these issues as being part and parcel of his claims for his increased ratings for his bilateral knee disabilities. In August 2020, the AOJ issued a rating decision that awarded increased ratings of 20 percent to the Veteran’s bilateral knee disabilities based on limitation of extension, effective May 3, 2019. The AOJ then awarded increased ratings of 30 percent to the Veteran’s bilateral knee disabilities based on limitation of extension, effective June 19, 2019. Right Hip Disability In the September 2020 Memorandum Decision, the Court found that a remand was necessary because the Board relied on inadequate examinations reports. Specifically, the Court determined that a November 2017 VA examination report did not comply with the Court’s holding in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The Court also found that a 2010 VA examination did not opine as to what extent of the Veteran’s functional loss was due to pain. As such, consistent with the terms of the September 2020 Memorandum Decision, a remand is necessary so that the Veteran can be afforded a new VA examination to address the current nature and severity of his service-connected right hip disability. Bilateral Knee Disabilities As noted in the Board’s February 2019 remand, the April 2018 JMPR determined that the prior examination reports of record did not fully comport with the last sentence of 38 C.F.R. § 4.59 (2020), which requires testing of the joints for pain on both active and passive motion, in weight-bearing and nonweight-bearing. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The Board further determined that the November 2015 and October 2016 VA examination reports did not comply with the holding in Sharp, supra. Thus, the Board directed the AOJ to obtain a retrospective medical opinion addressing the nature and severity of the Veteran’s service-connected bilateral knee disabilities. See Chotta v. Peake, 22 Vet. App. 80, 85 (2008). In April 2019, the Veteran underwent another VA examination to address the current nature and severity of his bilateral knee disabilities; however, the examination report again does not comply with the holding in Sharp, supra, and/or the February 2019 remand directives. Specifically, there is no indication that the examiner performed range of motion testing on both active and passive motion, in weight-bearing and nonweight-bearing in accordance with Correia. Furthermore, concerning the Veteran’s level of impairment following repetitive use or during flare ups, the examiner stated that he could not describe the level of impairment in terms of range of motion because there was no basis which to offer an estimate further loss, if any during flare ups or prolonged repetitive use, and that such an opinion would require mere speculation. Finally, the examiner did not provide a retrospective medical opinion addressing the nature and severity of the Veteran’s service-connected bilateral knee disabilities since August 2005, when his claim for increased ratings was received. The Veteran underwent another VA examination in June 2019 to address the current nature and severity of his bilateral knee disabilities; however, the examination report again does not comply with the holding in Sharp, supra, and/or the February 2019 remand directives. Specifically, concerning the Veteran’s level of impairment following repetitive use or during flare ups, the examiner stated that she could not say whether pain, weakness, fatigability, or incoordination would significantly limit functional ability with repeated use or during flare ups because she could not reliably determine and demonstrate range of motion loss during a flare-up or after repetitive use because there was “no flare present on exam.” She also noted that the Veteran’s medical records did not identify range of motion loss during flare ups or following repetitive use. Finally, she stated that general medical knowledge of the Veteran’s bilateral knee disability was insufficient to reasonably estimate range of motion for each plane of motion as there was great variability between veterans with similar conditions. The Board also notes that, in the January 2020 appellate brief, the Veteran’s representative argued that the Veteran’s bilateral knee disabilities may have worsened since the June 2019 VA examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Therefore, remand is necessary so that the Veteran can be afforded a new VA examination to address the nature and severity of his service-connected bilateral knee disabilities. On remand, the AOJ should also associate with the record any outstanding VA treatment records that are not currently associated with the claims file. In this regard, VA treatment records dated through August 5, 2020, are currently of record. Additionally, the Veteran should be given the opportunity to identify any outstanding pertinent evidence. TDIU As noted in the February 2019 remand, the Veteran’s claim for a TDIU is inextricably intertwined with his claims for higher ratings. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As such, the Board will defer consideration of that issue at this time. The matters are REMANDED for the following action: 1. Associate with the Veteran’s claims file any VA treatment records dated from August 5, 2020, to the present. 2. Give the Veteran an additional opportunity to identify any outstanding pertinent evidence that has not already been associated with the claims file. The AOJ should then attempt to obtain those records if the Veteran provides the appropriate authorization. 3. Thereafter, schedule the Veteran for an appropriate VA examination by a competent medical professional to determine the current nature and severity of his service-connected right hip disability. The entire record must be made available to, and be reviewed by the examiner. The examiner should take a history from the Veteran as to the progression of his service-connected right hip disability. The examiner must address each of the following: a) The examiner should describe all symptoms associated with the Veteran’s service-connected right hip disability since October 26, 2009. b) The examiner should conduct range of motion testing (expressed in degrees) in active motion, passive motion, weight-bearing, and nonweight-bearing. If pain is noted on range-of-motion testing, the examiner must specify at what point the Veteran’s loss of range of motion was due to pain and at what point the evidence of pain ended. c) The examiner should ask the Veteran to report any range of motion loss during flare-ups or following repeated use since October 26, 2009. The Veteran should be asked to identify: (1) the frequency of flare-ups; (2) the duration of flare-ups; (3) any precipitating factors; and (4) any alleviating factors. Even if the Veteran is not experiencing a flare-up at the time of the examination, the examiner must elicit relevant information as to flare ups and ask him to describe the additional functional loss include loss of range of motion, if any, he suffers during flare-ups or following repeated use. d) If the examination does not occur during a flare-up, based upon the evidence of record, and the information elicited on examination, to include the Veteran’s lay statements, the examiner should state whether it is at least as likely as not (50 percent probability or greater) that, during a flare-up or following repetitive use, (1) flexion is limited to 30 degrees; (2) extension is limited to 5 degrees; (3) rotation is limited such that the Veteran cannot toe-out more than 15 degrees; and/or (4) limitation of adduction is such that the Veteran cannot cross his legs (the measurements required for the next higher ratings). If flexion is limited to less than 30 degrees, please estimate the additional degree of motion loss during flare-ups or following repetitive use. Furthermore, please indicate whether, during flare-ups, there is loss of abduction beyond 10 degrees during flare-ups or following repetitive use. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran’s description as to the severity, frequency, and duration of flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner’s medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). All examination findings/testing results, along with a complete, clearly-stated rationale for any opinion offered, must be provided. 4. Thereafter, schedule the Veteran for an appropriate VA examination by a competent medical professional to determine the current nature and severity of his service-connected bilateral knee disabilities. The entire record must be made available to, and be reviewed by the examiner. The examiner should take a history from the Veteran as to the progression of his service-connected bilateral knee disabilities since August 19, 2005. The examiner must address each of the following: a) The examiner should describe all symptoms associated with the Veteran’s service-connected bilateral knee disabilities since August 19, 2005. b) The examiner should conduct range of motion testing (expressed in degrees) in active motion, passive motion, weight-bearing, and nonweight-bearing. If pain is noted on range-of-motion testing, the examiner must specify at what point the Veteran’s loss of range of motion was due to pain and at what point the evidence of pain ended. c) The examiner should ask the Veteran to report any range of motion loss during flare-ups or following repeated use since August 19, 2005. The Veteran should be asked to identify: (1) the frequency of flare-ups; (2) the duration of flare-ups; (3) any precipitating factors; and (4) any alleviating factors. Even if the Veteran is not experiencing a flare-up at the time of the examination, the examiner must elicit relevant information as to flare ups and ask him to describe the additional functional loss include loss of range of motion, if any, he suffers during flare-ups or following repeated use. d) If the examination does not occur during a flare-up, based upon the evidence of record, and the information elicited on examination, to include the Veteran’s lay statements, the examiner should state whether it is at least as likely as not (50 percent probability or greater) that during flare-ups or following repeated use since August 19, 2005, (1) flexion has been limited to 30 degrees; and/ or (2) extension has been limited to 15 degrees. If flexion has been limited to less than 30 degrees and/or extension has been limited to less than 15 degrees, please estimate the additional degree of motion loss during flare-ups or following repetitive use since August 19, 2005. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran’s description as to the severity, frequency, and duration of flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner’s medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). All examination findings/testing results, along with a complete, clearly-stated rationale for any opinion offered, must be provided. 5. Thereafter, and after any further development deemed necessary, the issues on appeal should be readjudicated. Jenna Brant Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Springer, 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.