Citation Nr: 21029020 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-34 255 DATE: May 12, 2021 REMANDED Entitlement to an initial disability rating greater than 10 percent for a left knee strain is remanded. Entitlement to an initial disability rating greater than 10 percent for a right knee strain is remanded. Entitlement to an initial disability rating greater than 10 percent for degenerative arthritis of the thoracolumbar spine is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1982 to April 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). Entitlement to initial increased disability ratings is remanded The Veteran submitted claims for service connection for her thoracolumbar disability and bilateral knee disability. The RO granted service connection for degenerative arthritis of the thoracolumbar spine, right knee strain, and left knee strain, assigning a 10 percent disability rating for each of the service-connected disabilities. It notified the Veteran of its decision in a May 2015 rating. In her notice of disagreement, the Veteran stated she suffers from chronic knee and back pain which significantly prohibit walking. The Veteran perfected her appeal to the Board and underwent VA examinations in March 2017. The March 2017 VA examiner recorded the Veteran's medical history and subjective statements describing the impact of flare-ups of her thoracolumbar spine and knee disabilities. The Veteran stated flare-ups of her back disability include a burning sensation due to sitting longer than 30 minutes. Walking and bending exacerbated her pain and she was unable to bear weight on her shoulders. The Veteran also stated she cannot sit or lay down for an extended period of time or move from side to side. The Veteran reported walking or standing longer than 20 minutes caused flare-ups of knee pain and is unable to walk short distances. The examiner noted that range of motion is limited due to pain and provided initial range of motion measurements. However, the examiner did not provide range of motion measurements during flare-ups or after repetitive use over time and explained this was because the examination was not conducted during a flare-up or after repetitive use. The examiner stated any measurements she provided would be speculative. The Veteran, through her accredited representative argued that new VA examinations should be ordered because the VA examiner did not provide range of motion measurements for functional loss due to pain nor did the examiner state why such measurements could not be ascertained by alternate means. The Veteran argued that the VA examination report fell short of the United States Court of Appeals for Veterans Claims (the Court) holding in Sharp v. Shulkin 29 Vet. App. 26. In Sharp, the Court held that an examiner must be sufficiently informed of any additional or increased symptoms and limitations the Veteran experienced during flare-ups. Furthermore, it must be clear that all procurable and assembled data was considered and the examiner must explain the inability reflects a lack of knowledge among the medical community at large. In this case, the Veteran reported the symptoms, severity, and duration of her back and knee disabilities during flare-ups. The examiner's failure to describe functional loss during flare-ups in terms of range of motion measurements "because the examination was not conducted during a flare-up" does not clearly show that the Veteran's detailed description of symptoms and functional loss during flare-sups were considered. Moreover, the VA examiner's statement does not show the Board that her "inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large and not a limitation, whether based on lack of expertise, insufficient information, or unprocured testing, of the individual examiner." Id at 14. A VA examiner should identify when specific facts cannot be determined. Additionally, approximately four years have passed since her last VA examination. As such, new VA examinations are required in order to comply with Sharp's holding and to provide the Board with the current severity of the Veteran's back and bilateral knee disabilities. The matters are REMANDED for the following action: 1. Obtain outstanding VA treatment records. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected bilateral knee strains and degenerative arthritis of the thoracolumbar spine. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. (a.) 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). (b.) 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 at all 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 Mohammad Mahmoudi, 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.