Citation Nr: 21029149 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-39 423 DATE: May 12, 2021 REMANDED Entitlement to an evaluation in excess of 10 percent for a right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1981 to August 2001. The Board of Veterans' Appeals (Board) remanded this matter in November 2018 for due process considerations. The case has returned to the Board for appellate review. Review of the current record reveals that further development is required before the Board may address this issue on the merits. The Veteran is seeking entitlement to an evaluation in excess of 10 percent for his service-connected right knee disability. The Veteran contends that his right knee disability is more severe than it is currently rated. Specifically, he contends that his right knee has gotten worse over time. The Board notes that both the Veteran's VA and private medical treatment records show that the Veteran has consistently complained of worsening right knee pain and that he wears knee braces and uses a cane for assistive ambulation. His private medical treatment records also indicate right knee instability, crepitus and effusion. Thus, remand is warranted to afford the Veteran a new VA examination because the record indicates that his right knee disability has worsened since his last VA examination. The Veteran was afforded VA examinations in January 2016 and August 2017. The Board find these VA examinations inadequate for rating purposes as they do not produce findings reflecting the extent of impairment of function when pain, weakness, fatigability, or incoordination significantly limit functional ability attributable to repeated use over time or during flare-ups, consistent with the requirements of estimating the loss of range of motion, under Sharp v. Shulkin, 29 Vet. App. 26 (2017). Moreover, neither examination includes findings showing testing for pain, active and passive motion and in weight-bearing and non-weight-bearing maneuvers, and, if possible, with comparisons to the ranges of motion of the opposite joint, damaged or undamaged, as required under Correia v. McDonald, 28 Vet. App. 158 (2016). Thus, remand is warranted to afford the Veteran with a sufficient VA examination complying with the Court's rulings in Sharp and Correia, and eliciting sufficient information regarding the severity, frequency, duration, and/or functional loss manifestations of the Veteran's right knee flares. The matter is REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should obtain copies of all pertinent, outstanding records from the VA Medical Center and its associated clinics where the Veteran receives treatment. If any pertinent private treatment has been rendered, the Veteran's assistance in obtaining these records should be requested as needed. All attempts to obtain records should be documented in the claims file. 2. Schedule the Veteran for a VA examination to determine the severity of the right knee disability during the entire period on appeal, to the extent possible. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The relevant Disability Benefits Questionnaire must be utilized. The examiner must describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion must also be noted. All findings of instability should be described, and it should be opined whether there is significant evidence of instability for earlier periods of this appeal. If the Veteran describes flare-ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically. Review of the prior examinations and entry of these findings retrospectively, to the extent possible, is also requested. If it is not possible to make such findings based on the evidence of record for those time periods, the medical rationale for that conclusion should be set out. Should the examiner state that he or she is unable to offer such an opinion without resorting to speculation based on the fact that the examination was not performed during a flare-up, the examiner is directed to do all that reasonably can be done to become informed before such a conclusion, to include ascertaining adequate information-i.e. frequency, duration, characteristics, severity, or functional loss-regarding his flares by alternative means. It is vital that all sources of information, including the Veteran's own statements, be used in describing the above. The examiner must also indicate the point during range of motion testing that motion is limited by pain. Specifically, the examiner should provide the degree at which during range of motion testing the Veteran experiences pain. The examiner must provide estimates of the range of motion and pain of the right knee in active motion, passive motion, weight-bearing, and non-weight-bearing. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Frazier, Associate Attorney 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.