Citation Nr: 21042032 Decision Date: 07/11/21 Archive Date: 07/11/21 DOCKET NO. 13-03 366A DATE: July 11, 2021 REMANDED Entitlement to an increased rating for a service-connected right knee disability (rated as 10 percent disabling prior to September 24, 2018 and 20 percent disabling thereafter under Diagnostic Code 5257 based on lateral instability in addition to 10 percent disabling since November 29, 2018 under Diagnostic Code 5260 based on limitation flexion and 50 percent disabling since May 13, 2021 under Diagnostic Code 5261 based on limitation of extension) is remanded. REASONS FOR REMAND This matter was most recently before the Board of Veterans' Appeals (Board) in December 2020, when it was remanded so the Veteran could be scheduled for a new examination to reassess the functional impairment resulting from his service-connected right knee disability due to his report of increased severity since his most recent examination in December 2018. The Veteran was scheduled for a new examination in May 2021, which resulted in a substantial increase in rating for his service-connected right knee disability based on limitation of extension; however, the May 2021 examiner reported the Veteran denied experiencing right-knee flare-ups, even though previous examination reports during the appeal period in September 2010, August 2017, and December 2018 document but inadequately address additional functional loss of the right knee due to flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Considering the inadequate assessment of flare-ups in the prior examination reports, the Board finds a retrospective opinion in accordance with Chotta v. Peake, 22 Vet. App. 80 (2008) is necessary in efforts to reconcile the inconsistency between the previous examination reports during the appeal period and the May 2021 examination report. The matter is REMANDED for the following action: Schedule the Veteran for a new examination to obtain a retrospective opinion addressing the functional impairment of his service-connected right knee disability throughout the appeal period in accordance with the holding in Chotta v. Peake, 22 Vet. App. 80 (2008). The examiner is first asked to solicit detailed information from the Veteran regarding right knee flare-ups. If the Veteran denies right knee flare-ups, as noted in the May 2021 examination report, the examiner is asked to provide an approximate date the Veteran's right knee flare-ups ceased or otherwise reconcile the lack of flare-ups with the previous examinations reports during the appeal period in September 2010, August 2017, and December 2018 that document flare-ups, to the extent possible based on the Veteran's lay reports and the other evidence of record. If it is determined the Veteran's flare-ups ceased during the appeal period, the examiner is specifically asked to provide a retrospective estimate of range of motion loss for the right knee during flare-ups throughout the appeal period that commenced with the Veteran's July 2010 increased rating claim up until the cessation of flare-ups. The examiner is also asked to provide an estimate, in accordance with the "at least as likely as not" standard, of the approximate date of onset of the limitation of extension to 50 degrees, as noted in the May 2021 examination report, based on the Veteran's lay reports and the other evidence of record. When providing the requested opinion, the examiner is asked to consider potential effects of pain, weakened movement, excess fatigability, instability of station, incoordination, and/or flare-ups on the Veteran's right knee and how these factors may or may not support the more severe range-of-motion loss shown during some examinations during the appeal period. The examiner must be advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. If the examiner cannot provide the requested opinion, he or she is asked to provide a detailed explanation for why this is so. If the examiner reports that the opinion cannot be provided without resorting to speculation, he or she must clearly acknowledge that he or she has considered the Veteran's reports and other lay evidence of record and explain why such evidence is insufficient to avoid resorting to speculation. If the examiner deems new range-of-motion testing necessary to provide any aspect of the requested opinion, the knees should be tested in both active and passive motion and in weight-bearing and nonweight-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 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. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. S. Kyle, 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.