Citation Nr: 21024531 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 16-32 533 DATE: April 23, 2021 REMANDED The issue of a rating in excess of 30 percent for a right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the Navy from July 1981 to October 2005. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2014 rating decision. In a January 2020 Board decision, the Veteran’s claim of a rating in excess of 30 percent for a right knee disability was denied. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In October 2020, the Court granted a Joint Motion for Partial Remand ( JMPR ), vacating the Board’s decision with respect to this issue and returning the issue to the Board. Presently, the Board finds that further development is necessary regarding the Veteran’s claim of a rating in excess of 30 percent for a right knee disability. First, in the October 2020 JMPR, the parties agreed that the Board did not provide adequate reasons and bases in denying the Veteran’s claim, as it had not properly addressed and analyzed the Veteran’s testimony. Second, the parties to the JMPR agreed that the June 2018 VA examination was inadequate. The parties stated that the June 2018 VA examiner indicated that there was pain noted on examination when conducting range of motion measurements but that the examiner did not make any findings regarding additional loss of range of motion due to pain. The parties agreed that although an examiner is not required to provide actual or objective measurements of functional loss due to flare-ups, the examiner is required, if possible, to estimate the functional loss that would occur during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The parties agreed that the lack of range of motion measurements regarding additional functional loss during a flare-up limited the Board’s ability to properly consider the disabling effects of pain. Lastly, the Board notes that during the June 2018 VA examination, the Veteran reported experiencing flare-ups of the right knee that were described as a sharp pain; however, the examiner concluded that pain, weakness, fatigability and incoordination did not significantly limit functional ability during a flare-up without addressing the Veteran's statements regarding sharp pain in the right knee during a flare-up. Thus, the Board finds that not only is a remand required to properly address the Veteran's testimony as noted above, but also to address the Veteran's statement regarding experiencing sharp pain in the right knee during a flare-up. Therefore, this matter must be remanded to obtain a new VA examination. Barr v. Nicholson, 21 Vet. App. 303 (2007). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and severity of his right knee disability. The claims folder must be made available to and be reviewed by the examiner. The examiner should address the following: a. Test each joint for range of motion and consider pain on both passive and active motion, in both weight-bearing and non-weight-bearing positions, including for the corresponding joint if appropriate. 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. (Continued on the next page)   b. The examiner should determine whether the right knee disability is manifested by weakened movement, excess fatigability, incoordination, and/or pain after repetitive use over time and/or during flare-ups. If feasible, the examiner must assess the additional functional impairment on repeated use over time and during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why this could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she should provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional should explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). Recent caselaw has held that the lack of opportunity to observe during a flare-up and/or after repeated use over time is an insufficient basis for not estimating the functional effects in terms of degrees of range of motion. The examiner should also consider all lay statements submitted by the Veteran regarding his disability. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Page-Nelson, 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.