Citation Nr: 21026036 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 10-43 305 DATE: April 29, 2021 REMANDED Entitlement to a rating higher than 10 percent for a right knee disability is remanded. Entitlement to a rating higher than 10 percent for a left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1982 to December 1984 and from June 1988 to January 2000. This appeal stems from an August 2009 rating decision. In July 2012, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. The VLJ who conducted the hearing has since retired from the Board. In May 2016, the Veteran declined the offer of another hearing. In January 2014, the Board remanded the claim for further development. In July 2016, the Board, in pertinent part, denied the increased rating claims for right and left knee disabilities. The Veteran timely appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In June 2017, the Court granted a Joint Motion for Partial Remand (JMPR), which vacated and remanded the claims to the Board. The JMPR found that while the Board noted the 2017 VA examiner’s findings, it did not adequately explain whether the documented limitations in walking, standing, sitting, and bending constituted the type of functional limitations that result from repeatedly using a joint over a period of time—i.e., whether such limitations result from pain, weakness, fatigability, or incoordination—and, if so, whether appropriate attempts were made to express any such functional loss in terms of loss of degrees of range of motion. In September 2017, the Board remanded the case or further development. In May 2018, the Board again remanded the case, finding that the December 2017 VA examination was inadequate. In December 2020, the Board again remanded the claim, again finding that there was no substantial compliance with the Board’s remand directives. Unfortunately, the Board again finds that there was no substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Specifically, the most recent January 2021 addendum opinion noted that any additional information, including range of motion, would be speculative because Veteran was not observed during flare ups/after repetitive use over a period of time. The examiner stated that range of motion was “a sign, not something that can be opined over, and it is a medical principle that a sign has to be observed in order to be measured.” Nonetheless, no examiner during the pendency of the appeal used the information provided by the Veteran or obtain additional information from the Veteran or the treatment records with respect to the frequency, duration, characteristics, severity, or functional loss during flare-ups and after repetitive use. The Court held that “before the Board can accept an examiner’s statement that an opinion cannot be provided without resorting to speculation, it must be clear that this is predicated on a lack of knowledge among the “medical community at large” and not the insufficient knowledge of the specific examiner.” See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017) (quoting Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)). Here, the examiner’s attempted explanation is contradictory to the Court’s holding as it solely relied upon the fact that the examination was not conducted immediately after repetitive use testing/during flare-ups. Therefore, a new examination must be obtained before the lumbar spine claim can be decided on the merits. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Thereafter, provide the Veteran with a VA examination to help identify the current severity of the bilateral knee disability. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. After a review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Elicit from the Veteran all signs and symptoms of the bilateral knee disability throughout the pendency of the appeal from December 2008, forward. In doing so, obtain information from the Veteran (and the treatment records) as to the frequency, duration, characteristics, severity, or functional loss with any repetitive use or during any flare-ups. (b) Full range of motion testing must be performed where possible. The joint in question and the paired joint should be tested in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in nonweight-bearing. 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. If pain is found during the examination, the examiner should note when the pain begins. (c) In assessing functional loss, flare-ups and increased functional loss on repetitive use must be considered. The examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion. **If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. (d) Reconcile the February 2019 opinion statements that the Veteran’s functional limitations(e.g., only being able to walk for 100yards at a time before stopping to rest, etc.)are the types of functional limitations that result from the Veteran using her knees repeatedly over a period of time (due to factors such as pain, weakness, fatigability, or incoordination) and the statement that the Veteran “reported increased knee pain during a flare up that would be variable depending on intensity,” with the July opinion that pain, weakness, fatigability or incoordination would not significantly limit her functional ability with flare-ups or with repeated use over time. A complete rationale should be provided for all opinions. 3. THIS APPEAL HAS BEEN REMANDED MULTIPLE TIMES FOR SUBSTANTIAL COMPLIANCE WITH PRIOR REMAND DIRECTIVES/ADEQUATE OPINIONS. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. 4. Thereafter, readjudicate the remanded claims. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Yaffe, 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.