Citation Nr: 22018362 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 16-07 307 DATE: March 29, 2022 REMANDED Entitlement to an initial compensable rating for a lumbar spine disability prior to August 20, 2018, and in excess of 10 percent thereafter is remanded. Entitlement to an initial compensable rating for a left knee disability prior to August 20, 2018, and in excess of 10 percent thereafter is remanded. Entitlement to an initial compensable rating for a right knee disability prior to August 20, 2018, and in excess of 10 percent thereafter is remanded. REASONS FOR REMAND The Veteran had active duty service from August 2010 to August 2013. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). These claims were remanded by the Board in June 2021 to afford the Veteran new examinations, which were accomplished in October 2021. Although the Board regrets the delay, an additional remand is required. The Veteran's representative also argued that the October 2021 examinations are not compliant with Sharp v. Shulkin, 29 Vet. App. 26, 34-35 (2017), which holds that examiners must seek information from all relevant sources, including veterans' lay statements, regarding the frequency, severity, and duration of flares; precipitating and alleviating factors; and the extent to which flares affect functional impairment. See February 2022 Appellate Brief, p. 2. Specifically, the representative pointed out that the Veteran indicated he experienced flare-ups of his back and bilateral knees at his February 2021 hearing before the Board, yet the October 2021 examination reports indicate the Veteran did not have flare-ups of the back or knees, and thus, did not provide an opinion compliant with Sharp. See id. Given that the Veteran clearly testified he experiences flare-ups in his back and knees, and because the most recent examinations do not consider this, the Board finds a remand is required. Additionally, the Board notes that the prior remand specifically instructed the examiner to discuss whether the Veteran's description of incapacity and inability to move during back or knee flare-ups is the functional equivalent of ankylosis. This was not accomplished, and therefore, it must be on remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). While this case is in remand status, all outstanding VA treatment records must be obtained and associated with the evidence of record before the Board. See Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran and his representative have the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the electronic claims file. 2. Afford the Veteran the appropriate spine and knee examinations to determine the current severity of these disabilities. The examiner(s) must provide the following information with respect to each knee and the thoracolumbar spine: (a) Obtain and record in the examination report a complete description from the Veteran regarding the symptoms and functional impairment he experiences, to include the frequency, duration, characteristics, severity, and functional loss on any flare-ups. (b) Range of motion testing must be performed and include testing in active motion and passive motion. The examiner(s) should also discuss weight-bearing and nonweight-bearing ranges. If such are not applicable or unable to be performed, the examiner(s) must provide an explanation for why this is so. (c) The examiner(s) should note any pain, weakened movement, excess fatigability, instability of station, and lack of coordination present. The examiner(s) must note, in terms of range of motion, the point at which there is objective evidence of pain in all spheres of testing. (d) The examiner(s) should state whether the examination is taking place during a flare-up or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner(s) must provide opinions estimating any additional degrees of limited range of motion caused by functional loss during a flare-up AND after repeated use over time. (e) Is the Veteran's description of incapacity/inability to move during back flare-ups the functional equivalent of ankylosis? Why or why not? (f) Is the Veteran's description of incapacity/inability to move during right or left knee flare-ups the functional equivalent of ankylosis? Why or why not? If rendering any opinion is not possible, the examiner(s) must provide an adequate explanation as to why; the inability to provide an opinion may NOT be based on the fact that the Veteran was not examined on repetitive use or during a flare-up. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board O'Connell, Jessica L. 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.