Citation Nr: 21032433 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 17-50 566 DATE: May 27, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for the service-connected left ankle sprain with degenerative arthritis is remanded. Entitlement to a disability rating in excess of 10 percent for the service-connected right ankle sprain with degenerative arthritis is remanded. Entitlement to a disability rating in excess of 10 percent for the service-connected patella tendonitis with history of Osgood-Schlatter disease of the right knee is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1990 to September 1994. This case is before the Board of Veterans' Appeals (Board) on appeal from Regional Office (RO) rating decisions dated in September 2014 and February 2016. In the September 2014 rating decision, the RO denied a disability rating in excess of 10 percent for right ankle sprain with degenerative arthritis, in excess of 10 percent for left ankle sprain with degenerative arthritis, and in excess of 10 percent for patella tendonitis with history of Osgood-Schlatter disease of the right knee. The Veteran's notice of disagreement (NOD) was received in September 2015. The RO issued a statement of the case (SOC) in February 2017. The Veteran's VA Form 9, substantive appeal to the Board, was received in March 2017. In the February 2016 rating decision, the RO denied entitlement to a TDIU. The Veteran's NOD was received in December 2016. The RO issued a SOC in September 2017. The Veteran's VA Form 9, substantive appeal to the Board, was received in October 2017. In January 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the testimony is associated with the claims file. 1. Entitlement to a disability rating in excess of 10 percent for service-connected left ankle sprain with degenerative arthritis is remanded. 2. Entitlement to a disability rating in excess of 10 percent for service-connected right ankle sprain with degenerative arthritis is remanded. 3. Entitlement to a disability rating in excess of 10 percent for service-connected patella tendonitis with history of Osgood-Schlatter disease of the right knee is remanded. With respect to the Veteran's increased rating claims for service-connected left ankle sprain with degenerative arthritis, right ankle sprain with degenerative arthritis, and right knee patella tendonitis with history of Osgood-Schlatter disease, the most recent VA examinations that evaluated the severity of his bilateral ankle and right knee disabilities were conducted in June 2014. The Veteran asserted that he disagrees with the June 2014 VA examination reports as it was noted that he did not have pain with motion. He explained that he has chronic pain daily in all three areas so much so that he had to have two surgeries in an effort to alleviate the pain. The medical and lay evidence also indicates that the Veteran's bilateral ankle and right knee disabilities have increased in severity to include increased weakness and instability in the bilateral ankles and right knee since the June 2014 VA examination. See June 2016 SSA medical examination (noting right knee operation in November 2014), February 2017 VA treatment record (since November 2015, the Veteran became walker dependent due to severe and progressive bilateral ankle and knee pain/weakness), March 2017 VA Form 9, and January 2021 Hearing Transcript. Furthermore, the U.S. Court of Appeals for Veterans Claims (Court) has held that the 38 C.F.R. § 4.59 requires VA examinations to include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Additionally, estimated ranges of motion should be provided during flare-ups or functional loss due to pain, if feasible, even if the Veteran is not experiencing a flare up or pain during the examination. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must "elicit relevant information as to the Veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the Veteran's functional loss due to flares based on all the evidence of record, including the Veteran's lay information, or explain why she could not do so." In this case, the June 2014 VA examination reports do not include the information necessary as required by Correia and Sharp. In light of the foregoing, the Veteran must be provided with a new VA examination to determine the current nature and severity of his service-connected bilateral ankle and right knee disabilities that includes the information required in Correia and Sharp. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Regarding the issue of entitlement to a TDIU, this issue is inextricably intertwined with the increased rating claims for left ankle sprain with degenerative arthritis, right ankle sprain with degenerative arthritis, and right knee patella tendonitis with history of Osgood-Schlatter disease, because the new VA examinations, as well as, any decision with respect to those claims, may affect the Veteran's claim for a TDIU. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination or examinations to determine the current nature and severity of his service-connected right and left ankle disabilities and his right knee disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should identify all right and left ankle, and, right knee pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also address the medical and lay evidence of instability and weakness of the Veteran's right and/or left ankle, and right knee. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should 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). The examiner is also asked to fully describe any functional effects of the Veteran's bilateral ankle and right knee disabilities on his activities of daily living, to include employment. (Continued on the next page) In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Berry, 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.