Citation Nr: 21040841 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 14-38 573 DATE: July 7, 2021 REMANDED Entitlement to a rating in excess of 10 percent for a left knee disability is remanded. Entitlement to a rating in excess of 10 percent for a right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1989 to August 1991 and from February 1992 to January 2002. These matters were previously before the Board in October 2020 and May 2018 and remanded for additional development. The claims are back before the Board for further appellate proceedings. Unfortunately, the Board finds remand is necessary for further development. Ultimately, the Board finds that the most recent VA examination is not adequate for rating purposes. Specifically, the March 2021 VA examination does not comply with the Court's holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp v. Shulkin, the Court held that a VA examination is inadequate when the VA clinician does not elicit relevant information as to the Veteran's flares or ask him to describe additional functional loss, if any, he suffered during flares and then does not "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 [he or she] could not do so." 29 Vet. App. 26, 35 (2017). The March 2021 VA examiner checked the box indicating that the Veteran did not report that he suffered from flare-ups regarding either knee on examination. See March 2021 VA examination report. However, upon examination the Veteran reported that daily activities worsen his knee pain. Id. The Veteran submitted a July 2014 private medical examination report from Dr. P.J.Y. Dr. P.J.Y. noted that the Veteran's right knee pain is "constant in varying degrees in the anterior compartment." See July 2014 Dr. P.J.Y. examination report. He also noted that the Veteran's left knee pain "intensifies with standing, sitting, walking, and transition to other position." Id. Importantly, at both the March 2021 VA examination and during his July 2014 examination with Dr. P.J.Y., the Veteran reported differing degrees of knee pain that can intensify depending on the activity. Given that the Veteran described a current level of pain that can worsen from what he experiences on other days, the Board finds this sufficient evidence to describe a flare-up. Thus, the Board finds that the Veteran credibly reported symptoms akin to that of flare-ups before and during his March 2021 VA examination. However, as outlined above, the March 2021 VA examiner simply checked the box that the Veteran did not report flare-ups. See March 2021 VA examination report. Thus, the March 2021 VA examiner did not elicit relevant information about flare-ups, nor did the examiner determine whether pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-ups, including a failure to describe functional loss in terms of range of motion in degrees and providing such measurements. Therefore, the Board finds that the March 2021 VA examination did not comply with Sharp and remand is necessary for an additional examination. Moreover, the March 2021 VA examiner concluded that there was no knee instability noted upon examination, and that the Veteran had no history of instability. See March 2021 VA examination report. As previously noted in the May 2018 Board remand, the Veteran reported that his left knee "gives out at unpredictable random [sic] and has caused several falls" during his July 2014 examination with Dr. P.J.Y. See July 2014 Dr. P.J.Y. examination report. The Veteran also reported left knee locking during his April 2009 VA examination. See April 2009 VA examination report. Neither of these reports related to knee instability were addressed by the March 2021 VA examiner. Thus, the examination is inadequate for adjudicative purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Reonal v. Brown, 5 Vet. App. 458 (1993). Accordingly, on remand the examiner must also address the Veteran's reported knee instability symptoms. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his bilateral knee disability that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran should be notified, and the record clearly documented. 2. Thereafter, schedule the Veteran for an examination of the current severity of his bilateral knee disability. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing for both knees. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner should specifically consider evidence of flare-ups as described by the Veteran in the July 2014 Dr. P.J.Y. examination report. The examiner should specifically consider evidence of instability as described by the Veteran in the July 2014 Dr. P.J.Y. examination report, and during the April 2009 VA examination. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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). 2. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Katie Poe, 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.