Citation Nr: 21031095 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 15-41 360 DATE: May 20, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for a service-connected left knee disability based on limitation of motion is remanded. Entitlement to a disability rating in excess of 10 percent for service-connected right knee disability based on limitation of motion is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1967 to October 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. The Veteran requested a hearing. A hearing scheduled for February 22, 2019 The Veteran did not appear at the scheduled February 22, 2019 hearing nor did he request for it to be rescheduled. As such, the Veteran's hearing request is considered withdrawn. See 38 C.F.R. § 20.704(e). 1. Entitlement to a disability rating in excess of 10 percent for a service-connected left knee disability based on limitation of motion is remanded. 2. Entitlement to a disability rating in excess of 10 percent for service-connected right knee disability based on limitation of motion is remanded. The Veteran seeks higher disability ratings than those currently assigned for his right and left knee disorders. When the Secretary undertakes to provide a veteran with a VA medical examination or opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A VA joints examination that fails to take into account the factors listed in §§ 4.40 and 4.45, including those experienced during flare-ups or on repeated use over time, is inadequate for evaluation purposes. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). For an examination not conducted during a flare-up or after repeated use over time to comply with DeLuca, the examiner must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veteran, and offer an opinion based on an estimate derived from information procured from relevant sources, including the lay statements of the veteran. Sharp v. Shulkin, 29 Vet. App. 26, 34-35 (2017). The examiner's determination in that regard should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss. DeLuca, 8 Vet. App. at 206. When an examiner states that he or she cannot offer an opinion without resort to speculation, that opinion is adequate only when it is clear that it is predicated on a lack of knowledge among the medical community at large and not the insufficient knowledge of the specific examiner. Sharp, 29 Vet. App. at 36 (quoting Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)). The Veteran was last afforded a VA examination of his knees in November 2016, more than four years ago. The examination does not fully comport with the requirements of Sharp and DeLuca and therefore is inadequate for rating purposes. Thus, at present, none of the medical evidence of record may fully satisfy the requirements of Sharp and DeLuva and 38 C.F.R. § 4.59. Accordingly, a new VA examination is necessary. Moreover, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). The Board also finds that a Remand is required for the regional office (RO) to provide the appellant with a supplemental statement of the case (SSOC) which provide him with notice of the new musculoskeletal rating criteria and adjudicates the claim applying these criteria. See 38 C.F.R. § 19.31 (a SSOC will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued). In this regard, when again rating the Veteran's disabilities the RO should be mindful of the fact that it may only apply the new rating criteria for the knee from the effective date of the change in the Diagnostic Code-February 7, 2012. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Also, when again rating the Veteran's disability the RO should be mindful of the fact that controlling laws and regulations also allow separate knee ratings for knee arthritis and instability as well as for lost knee flexion and extension. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994); VAOPGCPREC 9-2004; 69 Fed. Reg. 59990 (2004); VAOPGCPREC 23-97 (July 1, 1997). While the appeal is in Remand status any outstanding VA and private treatment records should also be obtained and associated with the record. See 38 U.S.C. § 5103A(b). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to assess the current severity of his service-connected right and left knee disabilities, to include any functional effects. The Veteran's claims file should be made available to and reviewed by the examiner, and he or she must indicate whether such review was accomplished. 2. The examiner should determine the range of motion of the Veteran's right and left knees in degrees. Range of motion testing must include both passive and active motion, and in weight-bearing and nonweight-bearing conditions, and the range of the opposite undamaged joint. It should be indicated whether and at what point during the Veteran's range of motion he experiences any limitation of motion that is specifically attributable to pain. Further, the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use, weakened movement, excess fatigability, or incoordination should be indicated. If the Veteran endorses flare-ups of symptoms the examiner must comment on the functional limitations of the right and/or left knee during flare-ups, and the effect of pain on range of motion. If there is no flare-up at the time of the examination, the examiner is asked to opine on further functional limitations based on the Veteran's subjective complaints and history. (Continued on the next page) 3. If the requested opinions and measurements cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Woehlke 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.