Citation Nr: 21026887 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 15-13 230 DATE: May 4, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for a left knee disability is remanded. Entitlement to an initial rating in excess of 10 percent for a right knee disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1999 to May 2000. This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2013 rating decision issued by a Department of Veterans Affairs Regional Office (RO). In March 2019 and October 2019, the Board remanded these matters for further development. In April 2020, the Board denied entitlement to initial ratings in excess of 10 percent for the left and right knees disabilities, as well as entitlement to a TDIU. The Veteran appealed the April 2020 Board decision to the Court of Appeals for Veterans Claims (Court). In a January 2021 Joint Motion for Remand (JMR) the parties moved the Court to vacate the April 2020 Board decision. In January 2021, the Court vacated the Board's decision, and remanded the issues to the Board for action consistent with the JMR. 1. Entitlement to an initial rating in excess of 10 percent for left knee disability is remanded. 2. Entitlement to an initial rating in excess of 10 percent for right knee disability is remanded. As the Court's July 2019 JMR order remanded the issues of entitlement to higher initial ratings for the left and right knees for the same underlying reasons, the Board will address the issues together. The JMR motion found, in part, that the Board relied upon May 2013, May 2017 and November 2019 examinations that did not meet the legal standards for musculoskeletal examinations. The JMR motion states that the May 2013 VA examiner did not opine as to whether the Veteran's pain could significantly limit functional ability, and if feasible, estimate such functional ability in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). The JMR motion further states that the May 2017 VA examiner stated that he was unable to opine as to whether the Veteran's pain, weakness, fatigability, and incoordination significantly limit his functional ability with repeated use over time. Such a rationale does not comply with the holdings of Sharp. Sharp at 468-78. Thus, the JMR motion found that neither the May 2013 or May 2017 examinations meets the legal requirements set forth in Sharp. The JMR motion also found that the November 2019 VA examination did not comply with a holding of Correia v. McDonald, 28 Vet. App. 158 (2016) because although the Veteran reported pain upon range of motion testing on both flexion and extension, the examiner did not make a finding as to where the Veteran's pain began. Thus, the November 2019 VA examination does not meet the standards set forth in Correia. VA has a duty to ensure any medical examinations or opinions it provides are adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Thus, the matters must be remanded for an examination which provides a full description of the Veteran's left and right knee disabilities and meets the requirements set forth in Sharp and Correia. Entitlement to a TDIU due to service-connected disability is remanded. The matter of entitlement to a TDIU must be remanded, as it is inextricably intertwined with the remanded issues of entitlement to initial ratings in excess of 10 percent for the left and right knee disabilities. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following actions: 1. Provide the Veteran with an additional opportunity to complete and return a TDIU claim form. Let him know that his claim may be determined abandoned if he does not provide sufficient information regarding past employment. 2. Obtain the Veteran's updated VA treatment records. 3. Schedule the Veteran for an examination to determine the current severity of his service-connected left and right knee disabilities. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. 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 specific measurements 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.