Citation Nr: 21040578 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 16-40 136 DATE: July 6, 2021 REMANDED Prior to October 11, 2016, entitlement to a rating in excess of 10 percent for left knee instability is remanded. From October 11, 2016, to April 14, 2019, entitlement to a rating in excess of 20 percent for left knee instability is remanded. From April 14, 2019, entitlement to a compensable rating for left knee instability is remanded. Entitlement to a rating in excess of 10 percent for left knee degenerative joint disease status post partial knee replacement (previously characterized as left knee osteoarthritis with limitation of flexion) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from February 1975 to February 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2014 and October 2016 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Board remanded these matters to the RO for further development. As an initial matter, the Board notes that in August 2013, VA received the Veteran's increased rating claim for his left knee disability and claim for a total disability rating based upon individual unemployability (TDIU). Thereafter, in a June 2020 rating decision and during the pendency of the appeal, the Agency of Original Jurisdiction (AOJ) granted entitlement to a TDIU from September 1, 2012. As this is considered a full grant of the benefit sought on appeal, the issue of entitlement to a TDIU is no longer before the Board in this decision, to include under Rice v. Shinseki, 22 Vet. App. 447 (2009). See also Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Board also notes that in a May 2019 rating decision, the AOJ reduced the Veteran's 20 percent rating for his service-connected left knee instability to a noncompensable rating (zero percent), effective April 14, 2019. The Veteran did not formally appeal the reduction of his disability rating for his service-connected left knee instability nor otherwise express disagreement with the May 2019 reduction. Rating reduction claims are separate from increased rating claims. Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992). As such, the propriety of the reduction is not included in the increased rating claims currently before the Board. However, as the appeal for an increased rating for the Veteran's left knee instability includes the time period during which the rating has been reduced to noncompensable, the Board will consider whether entitlement to a compensable rating for the Veteran's left knee instability is warranted from April 14, 2019. Prior to October 11, 2016, entitlement to a rating in excess of 10 percent for left knee instability; from October 11, 2016, to April 14, 2019, entitlement to a rating in excess of 20 percent for left knee instability; from April 14, 2019, entitlement to a compensable rating for left knee instability; and entitlement to a rating in excess of 10 percent for left knee degenerative joint disease status post partial knee replacement (previously characterized as left knee osteoarthritis with limitation of flexion) Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. First, the Board notes that the July 2020 Supplemental Statement of the Case (SSOC) does not contain the issue of entitlement to a compensable rating for left knee instability from April 14, 2019. The Board's January 2019 remand directives specifically directed the AOJ to readjudicate the Veteran's claims after the requested development was completed. Moreover, the RO's failure to issue an adequate SSOC is a procedural defect requiring remand. See 38 C.F.R. § 19.31(b). Accordingly, on remand and after conducting the additional development discussed below, the AOJ should issue an SSOC that contains the issue of entitlement to a compensable rating for the Veteran's left knee instability from April 14, 2019. Next, while the Board acknowledges that the Veteran recently underwent VA knee examinations in April 2019 and December 2019, due to inconsistencies and inadequacies among these examinations, the Board finds that another VA examination is necessary in order to adequately assess the severity of the Veteran's disabilities. In this regard, the Board finds that the April 2019 and December 2019 VA examinations do not sufficiently address the requirements under Sharp v. Shulkin, 29 Vet. App. 26 (2017). Specifically, the December 2019 VA examiner found that pain limited functional ability with flare-ups but indicated that he was unable to describe such in terms of range of motion because he had no basis to offer additional losses of function of motion for repeated use over time or during a flare-ups. However, the December 2019 VA examiner also noted that the Veteran's range of motion during a flare-up is the same as his initial range of motion. These findings are internally inconsistent as the examiner indicated both that the Veteran's range of motion during flare-ups would be the same as his initial range of motion and that he was unable to provide an estimate for range of motion during flare-ups. Thus, this finding is insufficient under Sharp as it is unclear what the Veteran's range of motion measurements are, or would be estimated as, during a flare-up. Additionally, the December 2019 examination findings concerning flare-ups are contradictory with the April 2019 VA examination findings, months prior, which contain estimated range of motion measurements during flare-ups that contain different measurements than the Veteran's initial range of motion. Further, the April 2019 and December 2019 VA examiners' findings concerning functional impairment after repeated use over time appear contradictory as the examiners both indicated that the Veteran's pain, weakness, fatigability, or incoordination did not significantly limit functional ability after repetitive use over time but also found that the Veteran's disability affected his ability to work in a setting requiring prolonged walking, standing, or climbing. Additionally, the Board finds that the December 2019 VA examination does not comply with all the findings required by Correia v. McDonald, 28 Vet. App. 158 (2016). In Correia, the United States Court of Appeals for Veterans Claims (Court) concluded that 38 C.F.R. § 4.59 requires VA examinations, whenever possible, to include joint testing for pain on both active and passive range of motion, as well as with weightbearing and non-weightbearing, and that if an examiner is unable to conduct the required testing or concludes that such is unnecessary, he or she should clearly explain why that it so. 28 Vet. App. at 158. Here, although the December 2019 VA examiner noted that the Veteran exhibited pain with flexion, extension, and with weightbearing and that pain caused functional loss, the VA examiner did not record the range of motion measurements for where pain began. The Board acknowledges that at the end of the examination report, the examiner remarked that active, passive, weight-bearing, and non-weight-bearing are consistent unless stated in the above examination and that if pain was noted, it was at end range of motion unless stated otherwise. However, the Board finds these statements do not satisfy the requirements under Correia because it is unclear whether the Veteran also experienced pain with passive range of motion and with non-weightbearing or whether all the Veteran's range of motion measurements (active, passive, non-weight-bearing, and weight-bearing) resulted in the same initial range of motion recorded on the examination report. Given the foregoing, a remand is warranted for a VA examination that complies with the provisions under Correia and Sharp to accurately assess the severity of the Veteran's disabilities. Moreover, in light of the inadequacies in recent examinations of record, on remand, the VA examiner should also provide a retrospective opinion concerning the severity of the Veteran's left knee disabilities during the appeal period. Finally, the evidence reflects that there may be outstanding private treatment records relevant to the Veteran's claims. In this regard, a November 2019 VA treatment record reflects that the Veteran has chronic bilateral knee pain and that he planned to follow-up for repeat Hyalgan injections with outside providers. As such, on remand, the AOJ should afford the Veteran another opportunity to identify and/or submit any outstanding private treatment records relevant to the issues on appeal. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. The last VA treatment of record is dated December 2019. 2. Provide the Veteran with another opportunity to identify and submit any outstanding private treatment records that are related to his claims. A November 2019 VA treatment record reflects the Veteran's reports that he planned to follow up for repeat Hyalgan injections for his bilateral knees with outside providers. After securing the necessary releases, any identified outstanding records should be obtained and associated with the claims file. 3. Then, schedule the Veteran for a VA examination to assess the severity of his service-connected left knee disabilities. The claims file, including a copy of this Remand, must be made available to, and be reviewed by the examiner. All indicated testing should be accomplished and all symptomatology associated with the disability should be identified. The examiner should respond to the following: (a) The examiner MUST TEST the Veteran's range of motion on active and passive motion, on weight-bearing and non-weight-bearing, if possible, and record the range of motion measurements. (b) If there is evidence of pain on motion, the examiner must indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination results in any loss of range of motion. 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 indicate so in the report. (c) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use due to the Veteran's left knee disabilities. The examiner should 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, if any, he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his left knee and 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. (d) If it is not feasible to determine the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why that is so. The examiner is further advised that the inability to provide an opinion without resorting to speculation must be based on the limitation of knowledge in the medical community at large and not a limitation - whether based on lack of expertise, insufficient information, or unprocured testing - of the individual examiner. (e) The examiner is also asked to provide a RETROSPECTIVE OPINION concerning the functional loss and severity of the Veteran's left knee disabilities. In this regard, the examiner should DISCUSS whether the Veteran's left knee disabilities, including his left knee instability, have increased in severity during the appeal period and COMMENT on whether range of motion measurements after repeated use over time and/or during flare-ups, can be estimated for the other VA examinations conducted during the appeal period. See, e.g., May 2014, October 2016, December 2017, April 2019, and December 2019 VA examination reports. If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should clearly explain so in the report and 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. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. 4. Readjudicate the issues on appeal based on the entirety of the evidence, to include entitlement to a compensable rating from April 14, 2019, for left knee instability. If any of the claims remain denied, provide the Veteran with an SSOC and allow an appropriate period of time for response. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Purcell, Associate 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.