Citation Nr: 23001047
Decision Date: 01/06/23	Archive Date: 01/06/23

DOCKET NO. 17-54 894
DATE: January 6, 2023

REMANDED

Entitlement to an increased disability rating in excess of 10 percent for the period prior to February 4, 2020 for service-connected right knee strain, status post knee surgery is remanded.

REASONS FOR REMAND

The Veteran had active-duty service from December 1981 to December 1985.

This matter comes before the Board of Veterans' Appeals (Board) from a March 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

Procedurally, the Board denied an increased disability rating in excess of 10 percent for the period on appeal in April 2022. The Veteran subsequently appealed said decision to the United States Court of Appeals for Veterans Claims (CAVC or Court), whereby the parties submitted an October 2022 Joint Motion for Partial Remand (JMPR), of which CAVC granted.

1. Entitlement to an increased disability rating in excess of 10 percent for the period prior to February 4, 2020 for service-connected right knee strain, status post knee surgery is remanded.

Per the parties' October 2022 JMPR, the Board erred by failing to address as to whether the June 2018 VA examiner adequately considered functional loss during flare-ups in accordance with Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017). Upon review of the June 2018 VA examination report, the Boards finds it inadequate to the extent that the VA examiner was required to estimate, based upon information elicited from the Veteran during the examination, any additional functional loss due to flare-ups. Here, the June 2018 VA examiner opined that she could not do so, as flare-ups can vary in intensity and there is no way to predict the amount of functional loss the Veteran suffers during one without it being observed. The Board does not find this to be a valid explanation as to why additional functional loss cannot be estimated in terms of limited range of motion, given that the VA examiner did not elicit any information from the Veteran regarding flare-ups. As such, the Board finds that a remand is in order to obtain an addendum medical opinion to determine whether the Veteran suffered any additional functional loss due to flare-ups for the period prior to February 4, 2020. See Barr v. Nicholson, 21 Vet. App. 303 (2007).

The matters are REMANDED for the following action:

1.  Solicit from the Veteran a statement in support of claim that describes his flare ups of the right knee disability prior to February 4, 2020. Of particular interest is a description of any associated pain, swelling, or other relevant symptoms, as well as a description of any activities that are limited or otherwise different from the normal function of his knee.

2. After the statement from the Veteran is received, forward that to a VA medical examiner in order to obtain an addendum opinion regarding estimated functional loss during flare ups prior to February 4, 2020.

If the examiner cannot estimate the degrees of additional range of motion during flare-ups without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge or by a deficiency in the record or the examiner.

 

 

Bethany L. Buck

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S.R. Fey, 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.