Citation Nr: 21032658 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 08-17 435 DATE: May 27, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent prior to April 1, 2011, and in excess of 40 percent thereafter, for degenerative joint disease of the left knee is remanded. Entitlement to an initial compensable rating prior to February 5, 2009, and in excess of 10 percent thereafter, for limited motion of the left hip is remanded. Entitlement to a total disability rating due to individual unemployability caused by service-connected disabilities (TDIU), prior to April 11, 2011, to include on an extraschedular basis, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1990 to June 1990 and in the Army National Guard for Active Duty for Training (ACDUTRA) from March 17, 1990 to March 19, 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that, in April 2014, the Board denied the claims for increase for the left knee and left hip. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans (Court). The Court granted a Joint Motion to vacate and remand the matter to the Board. In September 2015 and again in August 2018, the Board remanded the appeal. During the pendency of the appeal, the Veteran's left knee disability was assigned a 40 percent rating from April 1, 2011. With regard to the Veteran's left hip disability, the initial non-compensable rating was increased to 10 percent for limitation of extension, effective March 20, 2006. The Veteran continued to appeal both disabilities for a higher rating. In January 2020, the Board denied the Veteran's claims. She appealed that decision to the Court. In January 2021, the Court granted a Joint Motion to vacate and remand the appeal. The case has been returned to the Board for consideration. 1. Entitlement to an initial rating in excess of 20 percent prior to April 1, 2011, and in excess of 40 percent thereafter, for degenerative joint disease of the left knee. 2. Entitlement to an initial compensable rating prior to February 5, 2009, and in excess of 10 percent thereafter, for limited motion of the left hip. Issues 1 & 2: The Veteran contends that her left knee and left hip disabilities have continuously worsened including after her 2006 and 2010 procedures. See Correspondence (March 2011). Via her representative, she also argues regarding her left knee that she experienced residuals of her partial meniscectomy in 2006, including the annotated December 2015 VA examination report of locking and joint pain. See Third Party Correspondence (January 2021). For reasons explained below, the Board finds that remand is necessary. First, the July 2015 VA examination reports are inadequate for rating purposes because they do not reveal compliance with the Court's ruling in Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court noted that for a joint examination to be adequate, the examiner "must express an opinion on whether pain could significantly limit" a veteran's functional ability, and that determination "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Furthermore, the Court stated that the examiner must "obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves." Id. at 34. The examiner must also "offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans," and the examiner's determination "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Id. at 32 (quoting DeLuca v. Brown, 8 Vet. App. 202, 206 (1995)). Where feasible, the examiner should describe any limitations "in terms of the additional range-of-motion loss due to pain on use or during flare-ups." Id.; see Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011) (explaining that, to comply with DeLuca, the examiner must state at what point in the range of motion the claimant experienced limited motion specifically attributable to pain). In this instance, the July 2015 VA knee examination noted that Veteran reported functional loss as she is unable to stand or walk for long periods of time and experiences worsening knee pain. The examiner concluded that pain causes functional loss and noted pain on flexion and extension. The examiner also noted that the Veteran had flare-ups of her knee condition, but that an opinion on their severity would be speculative as the Veteran denied experiencing a flare-up at the time of the examination. At the July 2015 VA hip examination, the examiner found pain on flexion, extension, abduction, adduction, external rotation, and internal rotation, and stated that an opinion on the functional impairment of Veteran's hip on repeated use over time would be "speculative" because she was not suffering from a flare and any opinion on additional impairment would be "subjective." The examination report, however, did not describe or estimate the additional limitation of range of motion with repeated use over time due to pain or during flare-ups on both examinations based on the other evidence of record and the Veteran's statements. DeLuca, 8 Vet. App. at 206; Mitchell, 25 Vet. App. at 44. Regarding the Veteran's September 2019 VA examinations, which was not conducted during a flare-up, first, the range of motion estimates for flare-ups as well as for repetitive use over time of the left hip included flexion, extension, abduction and adduction from 0 to 0 degrees, and external rotation from 0 to 7 degrees and internal rotation from 0 to 5 degrees. No actual ankylosis was found on examination. Similarly, the Veteran could not perform repetitive-use testing at the left knee examination due to severe pain. Given the very limited range of motion findings, however, the Board finds that remand is necessary to obtain a medical opinion on whether the Veteran's left hip and/or left knee is/are 'functionally ankylosed' including during flare-ups and/or upon repetitive use. Second, the September 2019 VA examination findings do not reveal compliance with the Court's ruling in Correia v. McDonald, 28 Vet. App. 158 (2016). While the reports of examination show that the examiner did answer questions as to pain with weightbearing, the examiner did not provide adequate explanations or rationale for her or his answers; further, the clinician did not provide specific values for passive range of motion testing of the left hip, and for left knee and left hip for weight-bearing or non-weight-bearing. See C&P Exam (September 2019). Given the above, remand is warranted for retrospective findings that fully satisfy the requirements of Sharp and Correia. See Chotta v. Peake, 22 Vet. App. 80, 85-86 (2008) (discussing situations when it may be necessary to obtain a "retrospective" medical opinion to determine the date of onset or severity of a condition in years past); see also Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the time period being rated). Lastly, the Board notes a June 2006 partial meniscectomy and a September 2010 left ACL surgery. However, it is unclear whether the Veteran's left knee presents with any residual symptoms and specific residuals. On remand, a VA examination should indicate whether the Veteran has at any time during the appeal period (beginning June 2006) experienced any residual symptoms of the June 2006 and/or September 2010 procedure. See Chotta, supra. 3. Entitlement to a TDIU, prior to April 11, 2011, to include on an extraschedular basis. The claim for a TDIU is inextricably intertwined with the pending increased evaluation claims that are being remanded, and adjudication of a TDIU must be deferred until the intertwined issues are decided. Harris v. Derwinski, 1 Vet. App. 180 (1991). It is noted that, although the Veteran submitted VA Form 21-8940, in February 2016, she did not provide complete information. As remand is necessary, she should be afforded another opportunity to provide complete information. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a TDIU claim form (VA Form 21-8940, furnishing information for each section of the application. 2. Obtain the Veteran's VA treatment records for the period from September 2019 to the Present. 3. Schedule the Veteran for a VA examination by an appropriate clinician to determine the current severity of her service-connected LEFT KNEE and LEFT HIP disabilities. The examiner(s) 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. As to the below questions on range of motion measurements (ROM), 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. Current Findings: (a) For each knee and hip, test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing.). Note: The examiner should determine the effective ROM for the disability and present the results of ROM tests in a written report which complies with 38 C.F.R. § 4.59 by recording separate sets of the ROM test results for both active and passive motion, and in weightbearing and non-weightbearing. The examiner's report should describe objective evidence of painful motion, if any, during each test. IT IS NOT SUFFICIENT MERELY TO INDICATE WHETHER OR NOT PAIN WAS PRESENT DURING ONE OF THE REQUIRED ROM TESTS. If any of these findings are not possible, please provide an explanation. (b) Attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. Note: If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced ROM during flares or repetitive use. For TDIU purposes: (c) Elicit from the Veteran her complete educational, vocational, and employment history. (d) Ask the Veteran to describe in her own words the functional impact of her LEFT KNEE and LEFT HIP disabilities on her ability to perform the physical and mental acts required for substantially gainful work. The Veteran's response should be recorded in the examination report. (e) Indicate the objective functional effects of the Veteran's LEFT knee and LEFT HIP disabilities on her ability to perform the physical acts (e.g., walking, sitting, standing, bending) and mental acts (e.g., concentration, focus, attention, and memory) required for employment. Retrospective Findings: (f) Provide an addendum retrospective opinion for the Veteran's service-connected left knee disability and left hip disability to supplement the July 2015 VA Examination Report that: (i) Estimates the amount in degrees of ROM lost due to pain in both weightbearing and non-weight bearing positions, and on both active and passive motion based on the evidence of record and the Veteran's statements. (ii) Estimates the amount in degrees of ROM due to flare-ups experienced by the Veteran based on the evidence of record and the Veteran's statements. (g) Provide an addendum retrospective opinion for the Veteran's service-connected left knee disability and left hip disability to supplement the September 2019 VA Examination Report that: (i) Estimates the amount in degrees of ROM lost due to pain in both weightbearing and non-weight bearing positions, and on both active and passive motion based on the evidence of record and the Veteran's statements. (h) LEFT KNEE: Opine on (1) for the period from March 20, 2006 to June 13, 2006 was the Veteran's left knee ROM, including during periods of flare-ups, manifested by the equivalent of 'functional ankylosis' and if so, what type of ankylosis (e.g. favorable or unfavorable); (2) for the period from February 1, 2007 to September 10, 2010 was the Veteran's left knee ROM, including during periods of flare-ups, manifested by the equivalent of 'functional ankylosis' and if so, what type of ankylosis (e.g. favorable or unfavorable); (3) for the period from April 1, 2011 was the Veteran's left knee ROM, including during periods of flare-ups, manifested by the equivalent of 'functional ankylosis' and if so, what type of ankylosis (e.g. favorable or unfavorable). Explain. (i) LEFT HIP: Opine on at any time since March 20, 2006, has the Veteran's left hip ROM, including during periods of flare-ups, manifested by the equivalent of 'functional ankylosis' in flexion between 20 degrees and 40 degrees and slight adduction or abduction; or intermediate ankylosis; or unfavorable ankylosis such that the foot does not reach ground, crutches necessitated. (j) Opine on whether there are any residuals of the Veteran's service-connected left knee June 2006 partial meniscectomy and/or September 2010 left ACL surgery. In so doing, address the December 2015 VA examination report of locking and joint pain. Explain. 4. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. M. Pesin 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.