Citation Nr: 21026607 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-27 493A DATE: May 3, 2021 REMANDED Entitlement to an initial rating higher than 10 percent for status post right tibia and fibula fracture with open reduction and internal fixation (ORIF) and residual hardware disability is remanded. Entitlement to an initial rating higher than 10 percent for right knee arthritis disability is remanded. Entitlement to an initial rating higher than 10 percent for left knee arthritis disability is remanded. Entitlement to an initial rating higher than 10 percent for lumbar spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty service from September 1975 to April 1985, from March 2004 to April 2005 and from June 2008 to February 2010. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Although the Veteran requested a hearing in the June 2016 VA Form 9, he did not appear at his scheduled hearing in August 2019 and did not provide any explanation or indicate that he wished the hearing to be rescheduled. The hearing request is thus deemed withdrawn. 38 C.F.R. § 20.702 (e). In a letter received in October 2018, the attorney withdrew her representation. The attorney provided a copy of the letter to the Veteran, and the Veteran has not objected to the attorney's withdrawal of representation. As the attorney withdrew and the Veteran has not appointed a new attorney, agent, or representative, he is currently unrepresented. If the Veteran wishes to retain representation, he may still do so. 1. Entitlement to an initial rating higher than 10 percent for status post right tibia and fibula fracture with open reduction and internal fixation (ORIF) and residual hardware disability is remanded. 2. Entitlement to an initial rating higher than 10 percent for right knee arthritis disability is remanded. 3. Entitlement to an initial rating higher than 10 percent for left knee arthritis disability is remanded. 4. Entitlement to an initial rating higher than 10 percent for lumbar spine arthritis disability is remanded. The Veteran's most recent examinations for his knees and back were in October 2014. The Board therefore finds that there is insufficient contemporaneous evidence of record to evaluate the Veteran's knee and back disabilities, and updated medical examinations are needed to evaluate the Veteran's claims fully and fairly See Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination). Furthermore, VA has a duty to ensure that any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The reports do not provide a full description of the knee and back disabilities and report all signs and symptoms necessary for evaluating the Veteran's knee and back disabilities under the rating criteria. The October 2014 VA back disability examination is incomplete because the examiner found that the Veteran had back flareups, but did not report loss of range of motion with flare-ups, and as rationale stated that he or she was unable to provide the estimated range of motion without resorting to speculation. In a November 2015 examination addendum, the examiner stated that he or she was unable to report loss of range of motion with flare ups without resorting to speculation. This examination does not comply with the requirements in Sharp. Further, the back disability examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016), as the examination does not contain passive range of motion measurements or pain on weight-bearing measurements in degrees. The examiner indicated that the Veteran has functional loss, functional impairment and/or additional limitation of range of motion of his spine due to, in pertinent part, weight bearing. (The spine does not have an opposite joint.) Therefore, considering those deficiencies, the October 2014 VA examination is incomplete, and remand is warranted for the VA to provide an examination that complies with the holdings of Sharp and Correia. The October 2014 VA knee conditions examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016), as it does not contain passive range of motion measurements or pain on weight-bearing measurements in degrees. In the January 2015 Notice of Disagreement, the Veteran, through his attorney, requested a hearing before a Decision Review Officer (DRO) and a DRO hearing was scheduled for November 6, 2016, however, the Veteran did not report for this scheduled hearing. The matter is in dispute. The RO telephoned the Veteran on the morning of the hearing and he informed them that the hearing was supposed to be rescheduled. In a facsimile dated and received on February 2, 2015, the Veteran, through his attorney, had requested a continuance for the DRO hearing. The RO did not reschedule the DRO hearing. Thus, a DRO hearing should be scheduled on remand. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records from May 2017 to the present. Request that the Veteran to complete a VA Form 21-4142 for any private treatment records he wishes to have obtained. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran with a DRO hearing. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral knee disabilities, status post right tibia and fibula fracture, and his back disability. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's bilateral knee and back disabilities under the rating criteria. (Continued on the next page) The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Susan Leary 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.