Citation Nr: 21029657 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 18-23 370 DATE: May 14, 2021 REMANDED Entitlement to an initial disability rating in excess of 10 percent for the Veteran's service-connected right knee arthritis is remanded. Entitlement to an initial disability rating in excess of 10 percent for the Veteran's service-connected left knee arthritis is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to May 1, 2018 is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1972 to September 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2016 and December 2017 rating decisions issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). These matters were adjudicated in a March 2020 Board decision. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In December 2020, the Veteran and VA (the parties) agreed to a Joint Motion for Remand (JMR) vacating the Board's decision on the claims and remanding the matters back to the Board for readjudication consistent with the terms of the JMR. The Court issued an Order in December 2020 granting the JMR. In the JMR, the parties discussed the relevant VA and private examinations of record. At the December 2015 VA examination, the Veteran reported flare-ups of swelling that occurred after prolonged sitting or standing, but the VA examiner was unable to say if pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time or during a flare-up without resorting to mere speculation." In a May 2016 disability benefits questionnaire (DBQ), a private physician noted the Veteran's reports of flare-ups and knee pain, and opined that the Veteran would experience an additional 5 degrees of motion loss upon flexion of both knees during flare-ups and/or after repeated use over time. At a February 2018 VA examination, the Veteran reported flare-ups that occurred daily and pain with walking, standing, squatting, and prolonged sitting; however the VA examiner was unable to say if pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time or during a flare-up without resorting to mere speculation. The matters came to the Board in June 2019, where they were remanded for an additional VA examination that fully addressed the considerations raised in Sharp v. Shulkin, 26 Vet. App. 26 (2017). A final VA examination was obtained in November 2019, where the Veteran did not report flare-ups of knee pain. In the JMR, the parties agreed that the Board failed to provide an adequate statement of reasons and bases addressing whether the November 2019 VA examination complied with the Board's June 2019 remand directives or whether the Veteran was entitled to a retrospective examination based on the evidence of record. Following a complete review of the record, the Board finds that the November 2019 VA examination substantially complied with the June 2019 remand directives. In the Board remand, the claim was remanded for an updated VA examination that fully considered the "current severity" of the Veteran's disabilities, to include testing active and passive motion, and pain with weight bearing and without weight bearing. The VA examiner was requested to estimate additional limitation of motion experienced by the Veteran during flare-ups and after repetitive use over time, based on the Veteran's description of severity, frequency, and duration. At the November 2019 VA examination, the VA examiner determined there was pain with weight bearing in both knees, passive range of motion testing was not medically appropriate, and there was no pain on nonweight bearing. The Veteran did not report flare-ups in the knees, and regarding repeated use over time, the VA examiner estimated no additional limitation of motion, as the Veteran merely reported pain and did not indicate range of motion loss or other functional impairment. Active range of motion testing showed knee flexion to 120 degrees and full extension bilaterally with no additional loss of motion with repetitive testing. Pain was noted on exam, but did not result in/cause functional loss. The November 2019 VA examiner issued a VA examination report that substantially complied with Sharp, supra, Correia v. McDonald, 28 Vet. App. 158 (2016), and the Board's June 2019 remand directives. However, in the JMR, the parties requested the Board to consider whether a retrospective examination was necessary to ascertain whether the Veteran could achieve limitation of motion more severe than the range of motion findings documented in previous examinations based on his lay reports of flare-ups and/or functional loss with repeated use over time. At the December 2015 VA examination, range of motion testing showed 120 degrees of flexion and full extension for both knees. However, the VA examiner declined to opine on additional limitation of motion during a flare-up or following repeated use over time because to do so would be based on pure speculation. The physician who completed the May 2016 private DBQ appropriately addressed additional limitation upon flare-ups and/or after repeated use over time. At the February 2018 VA examination, range of motion for both knees was 0 to 70 degrees. Again, this VA examiner declined to opine on additional limitation of motion during flare-ups or following repeated use over time because to do so would be based on pure speculation. As discussed above, at the November 2019 VA examination, the Veteran denied flare-ups and the VA examiner appropriately addressed additional functional loss following repeated use over time. In Sharp, the Court held that a VA examiner must attempt to elicit information from the record, and the Veteran, regarding the severity, frequency, duration, or functional loss manifestations during flare-ups or following repeated use over time before determining that an estimate of motion loss in terms of degrees could not be given. Sharp, 39 Vet. App. at 34-36. The decision also held that any inability to furnish such an estimate must be based on a lack of knowledge among the medical community at large, rather than insufficient knowledge by an individual examiner. Id. at 33. In consideration of the above, and the arguments raised in the JMR, the Board finds that the December 2015 and February 2018 VA examinations did not substantially comply with Sharp, and a remand is warranted for a retrospective opinion that reviews the December 2015 and February 2018 VA examination reports and considers whether the Veteran's bilateral knee disability resulted in additional functional loss due to his reported flare-ups and/or following repeated use over time. See Chotta v. Peake, 22 Vet. App. 80 (2008) (retrospective medical opinions are permitted in determining disability ratings). Although unaddressed in the JMR, the record also contains a relevant VA examination from September 2010, which addressed the Veteran's service-connected right knee disability. A facial review of this examination report reveals no evidence indicating that the Veteran experienced right knee flare-ups at that time or functional loss following repeated use over time, and neither the Veteran nor his attorney have argued otherwise. As such, no corrective evidentiary development is warranted in regard to the September 2010 VA examination. The December 2020 JMR and corresponding Court Order also vacated the March 2020 Board decision's denial of entitlement to a TDIU prior to May 1, 2018 based on the parties' agreement that the Board failed to address Withers v. Wilkie, 30 Vet. App. 139 (2018), in its discussion of whether the Veteran was capable of performing sedentary employment. Additionally, the parties noted the Board's acknowledgment that consideration should be given to the Veteran's education level, but found that the Board did not discuss the Veteran's level of education in the decision on appeal. The Board observes that the Veteran has satisfied the schedular TDIU criteria as of December 8, 2014, although the period on appeal for the Veteran's claim dates back to August 19, 2008, as part and parcel with the Veteran's increased rating claim for his service-connected right knee arthritis. Rice v. Shinseki, 22 Vet. App. 447 (2009); Harper v. Wilkie, 30 Vet. App. 356, 362 (2018). As the requested development involving the Veteran's increased rating for the right knee has a slight potential to result in the Veteran achieving the schedular TDIU criteria earlier than December 8, 2014, the Veteran's claim for entitlement to a TDIU must be remanded as inextricably intertwined with the pending increased rating claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain a retrospective medical opinion from an appropriate VA examiner. The VA examiner is requested to review the range of motion findings documented at the December 2015 and February 2018 VA examinations, as well as the Veteran's reports of flare-ups and/or functional loss following repeated use over time, and opine on whether the Veteran would have experienced additional limitation of motion during such flare-ups or following repetitive use over time at the time of those VA examinations. The examiner should estimate any functional loss in terms of additional degrees of limited motion experienced during flare-ups and after repetitive use over time, based on the Veteran's description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time. If the VA examiner requires additional information from the Veteran, he/she should obtain such information. If, after attempting to estimate additional loss of motion, an opinion cannot be rendered without resorting to speculation, the VA examiner must explain whether this is the result of a lack of knowledge among the medical community at large or due to any other reason, such as insufficient knowledge of the specific examiner. 2. Then readjudicate the Veteran's initial increased rating claims for his service-connected right and left knee arthritis, as well as entitlement to a TDIU prior to May 1, 2018. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Galante 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.