Citation Nr: 21025062 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 16-18 330 DATE: April 27, 2021 REMANDED 1. Entitlement to an initial rating in excess of 10 percent for right knee patellofemoral syndrome is remanded. 2. Entitlement to an initial rating in excess of 10 percent for left ankle synovitis is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1987 to June 2011. These matters come to the Board on appeal from an August 2012 Regional Office (RO) rating decision. The matters were previously remanded by the Board for further development in October 2018. 1. Entitlement to an initial rating in excess of 10 percent for right knee patellofemoral syndrome is remanded. 2. Entitlement to an initial rating in excess of 10 percent for left ankle synovitis is remanded. The October 2018 Board remand directed the RO to obtain VA examinations to assess the current severity of the Veteran’s right knee and left ankle disabilities, specifically with consideration of the holdings in Sharp v. Shulkin, 29 Vet. App. 26 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016). The resulting examinations took place in March 2019. There, the VA examiner stated that he was unable to say whether pain, weakness, fatigue, or incoordination significantly limited functional ability with repetitive use over time without resort to mere speculation. The examiner explained that there was no conceptual or empirical basis for making such a determination without directly observing function under those conditions, and that there was a lack of supporting objective documentation in file. Thus, the examiner reasoned, he could not provide additional loss in terms of range of motion, and added that there was no “persistent evidence of record, considered to be valid or reproduceable for ratings purposes, that indicates a loss of function during these conditions.” The examiner provided the same response and rationale with regard to flare-ups, but on examination, noted that the Veteran denied flare-ups of either condition. The Board finds the examiner’s rationale with regard to repetitive use over time to be inadequate. The October 2018 remand directed the examiner, with regard to evaluating flare-ups, to utilize information in the file, examination results, and information elicited from the Veteran if not currently experiencing a flare-ups. While the examiner noted no flare-ups, the examiner should use the same process to estimate additional functional loss caused by repetitive use over time. The examiner did not appear to elicit any information from the Veteran as to how his condition responds to repetitive use over time, and only relied on what he called the objective documentation already of record. Further, the Veteran was seen for VA examinations of both disabilities again in October 2020. The examiner provided the exact same inadequate reasoning as justification for an inability to determine additional function loss due to repetitive use over time as well as during flare-ups. However, with regard to the Veteran’s knee disability, the Veteran reported flare-ups of the knee, and the examiner did not appear to elicit information about the flares from the Veteran. On remand, the examiner should use information elicited from the Veteran to attempt to determine the impact of repetitive use over time and flare-ups on the Veteran’s knee and ankle disabilities. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matters are REMANDED for the following action: 1. Forward the record and a copy of this remand to the examiner who completed the October 2020 knee and ankle examinations (or, if that examiner is unavailable, to another suitably qualified examiner) for completion of an addendum opinion. An additional examination should be completed if necessary to adequately assess the impact of flare-ups and repetitive use over time on the Veteran’s disabilities, to include eliciting information from the Veteran about such impact as detailed in Sharp v. Shulkin, 29 Vet. App. 26 (2017). A complete rationale for all conclusions reached and opinions expressed must be provided. 2. After completion of the above, readjudicate the issues on appeal. If any benefit sought remains denied, furnish the Veteran and representative a Supplemental Statement of the Case and an appropriate amount of time for response. Thereafter, return the case to the Board for review. Roya Bahrami Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Baker, 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.