Citation Nr: 22017266 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 13-07 600 DATE: March 24, 2022 REMANDED Entitlement to a rating in excess of 10 percent for right knee degenerative joint disease is remanded. Entitlement to a rating in excess of 10 percent prior to December 2, 2015, and in excess of 20 percent thereafter, for right knee subluxation is remanded. Entitlement to special monthly compensation (SMC) based on the loss of use of both feet is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 2000 to October 2002. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2014, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claim file. In January 2021, the Board last remanded these matters to the RO for further development. During the period on appeal, the Veteran was granted an increased 10 percent rating for recurrent subluxation of the right knee in a November 2021 rating decision, with an earlier effective date of May 16, 2013. As less than the maximum available benefit for a schedular rating was awarded and to the extent that the increases were not awarded for the entirety of the claims period, the claims remain before the Board. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35 (1993). 1. Entitlement to a rating in excess of 10 percent for right knee degenerative joint disease is remanded. 2. Entitlement to a rating in excess of 10 percent prior to December 2, 2015, and in excess of 20 percent thereafter, for right knee subluxation is remanded. This matter has been before the Board in April 2015, December 2017, December 2018, January 2021, and most recently in August 2021. At the time of the most recent August 2021 remand, the Board pointed out that the Veteran's increased rating claim had been on appeal for several years. Nonetheless, the Board found that in light of the August 2018 JMPR discussion of the inadequacies with the June 2011, May 2013, and December 2015 VA examination findings, a medical opinion addressing the Veteran's range of motion measurements after repeated use over time and during flare-ups for the entire period on appeal was vital to adjudicating the claim. Accordingly, the matter was remanded, with emphasis on obtaining such an adequate opinion. As pertinent to the remand herein, the examiner was instructed that if he or she could not offer a retrospective opinion, it should be explained why the opinion could not be offered. The Veteran was afforded a VA examination in October 2021. The examiner indicated that an opinion which addressed range of motion measurements in the right knee after repeated use over time and during flare-ups could not be offered without resorting to speculation. The examiner indicated that he or she "did not examine the Veteran at the time (of the prior examinations) so did not guestimate the possible range of motion with overuse and during a flare-up". Here, it seems that the examiner concluded that a retrospective opinion could not be offered, solely because he or she was not the examining clinician at the time of the prior examinations. Additionally, the examiner was instructed to provide a retrospective opinion to clarify the findings of a prior May 2021 examination. Specifically, the May 2021 examiner noted the Veteran had pain with weight-bearing and non-weight bearing that causes functional loss in the form of limited range of motion, but the examiner did not provide the associated range of motion findings. The examiner again indicated that the opinion could not be offered without resort to speculation, because the Veteran had been examined during a flare-up at the time of the May 2021 examination. When a VA medical examination is not conducted during a flare-up or following repeated use over time, it must include an estimate of functional ability based on all procurable information or explain why such an estimate cannot be provided. Sharp v. Shulkin, 29 Vet. App. 26, 33-35 (2017). All procurable information includes that from the Veteran regarding the severity, frequency, duration, precipitating and alleviating factors, and the extent his functional ability is limited. In this case, the Board specifically cited several relevant findings from prior VA examinations that included range of motion findings and the Veteran's statements regarding the frequency and duration of flare-ups during the appellate period. Nonetheless, the examiner declined to offer the requested opinions. Given the examiner's explanations that (1) he or she could not offer an opinion as they did not conduct the prior examinations of record and (2) that the May 2021 examination was conducted during a flare-up, there is no indication that the examiner considered all procurable data before declining to offer the requested opinions. Thus, the October 2021 examination is inadequate. Without objective medical evidence of the severity of the Veteran's right knee disability throughout the appellate period, the Board is unable to adjudicate the Veteran's claim. Additionally, the October 2021 opinion is deficient in that the findings are inconsistent with the remainder of the evidence of record. Specifically, the Veteran has a long history of loss of range of motion of the knee, painful motion of the knee, and flare-ups that have been reported to occur as frequently as daily. See June 2011, May 2013, December 2015, December 2018, August 2020, June 2021 Examinations. However, at the time of the October 2021 examination, the Veteran was reported to have full range of motion of the knee, without pain, and no evidence of flare-ups. These findings are further called into question as the Veteran reported during the examination that he avoids certain activities that will cause flare-ups. Once VA undertakes the efforts to provide an examination, even if not required to undertake one, an adequate examination must be provided. See Barr v. Nicholson, 21 Vet. App. 3030, 311 (2007). Based on the foregoing, the Board has no recourse but to remand the Veteran's claim for an examination which complies with the Board's prior remand directives. 3. Entitlement to special monthly compensation (SMC) based on the loss of use of both feet is remanded. As the development of the Veteran's increased rating right knee claims could impact the Veteran's SMC claim, the issues are inextricably intertwined. See 38 C.F.R. § 3.350(a)(2)(i)(a). Therefore, the Board will defer adjudication of this matter at this time. The matters are REMANDED for the following action: 1. Arrange for an appropriate clinician, other than the October 2021 examiner, to provide an addendum opinion regarding the severity of the Veteran's right knee disability. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. A copy of the Veteran's claims file, including a copy of this Remand, should be made available to, and be reviewed by the examiner. Following a review of the record, the examiner should address the following inquiries: a.) The examiner is requested to review the May 2021 and October 2021 VA knee examination report and offer an opinion as to the range of motion findings, expressed in degrees, for pain on weight-bearing and non-weightbearing. Specifically, the examiner should comment on whether range of motion measurements for pain on weight-bearing and/or non-weightbearing can be estimated in degrees from the May 2021 and October 2021 VA examination reports. If the examiner is unable to provide such an opinion, he or she should explain why. b.) The examiner MUST provide a retrospective opinion as to the functional limitations caused by flare-ups and repetitive use due to the Veteran's disability throughout the period on appeal. Specifically, for the June 2011, May 2013, December 2015, and December 2018 VA knee examinations, the examiner should provide an opinion as to whether the Veteran's functional ability was significantly limited during flare-ups and after repeated use over time and ESTIMATE (at the time of these examinations) the Veteran's right knee range of motion measurements during flare-ups and after repeated use over time. The examiner MUST ask the Veteran to describe the flare-ups, if any, he experienced during this period, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his right knee 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. Should the examiner determine that the Veteran did/does not experience loss of range of motion or flare-ups of the knee, s/he must reconcile this finding with the remainder of the evidence of record showing a history of loss of range of motion of the knee, painful motion of the knee, and flare-ups that have been reported to occur as frequently as daily. The Board notes that the June 2011 VA examination reflects the Veteran experienced weekly flare-ups that lasted for hours; the May 2013 VA examination reflects that the Veteran was unable to tolerate repetitive use testing due to increased pain; the December 2015 VA examination reflects that the Veteran reported flare-ups where he did not want to do anything but apply ice and lay down; the December 2018 VA examination noted that at worse the Veteran cannot move the knee at all due to pain but at other times, his range of motion was minimal; the August 2020 VA examination reflects an estimated variable range of motion during flare-ups from 5-55 degrees to 45-10 degrees and a history of severe recurrent subluxation; and the May 2021 VA examination reflects the Veteran's range of motion during flare-ups and after repeated use over time was zero to 105 degrees. If the examiner cannot provide an opinion as to additional loss of motion on repeated use or during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. The Veteran is competent to attest to factual matters of which the Veteran has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Marsh II, 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.