Citation Nr: 23019167 Decision Date: 03/28/23 Archive Date: 03/28/23 DOCKET NO. 17-40 733 DATE: March 28, 2023 REMANDED For the period prior to September 11, 2018, entitlement to a disability rating in excess of 10 percent for a right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1993 to December 1997 and from August 2002 to July 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before a Veterans Law Judge in September 2020. The Veterans Law Judge who held the hearing is no longer employed by the Board. The Veteran was notified by a letter in February 2023 of his right to an additional hearing before a member of the Board that will make a decision on this appeal. The letter states that if the Veteran does not respond to the letter within 30 days, the Board will assume that he does not want another hearing. To date, the Veteran has not responded to the February 2023 letter. The Board will review the matter using the evidence of record. In October 2018, the RO issued a decision increasing the Veteran's rating to 100 percent effective September 11, 2018 based on a total knee replacement, and assigned a 30 percent rating from November 1, 2019. The Veteran's representative stated at the hearing that the Veteran is not appealing the Veteran's 30 percent rating, and is only appealing the Veteran's rating prior to September 11, 2018. Therefore the Boards finds that the Veteran has specifically limited the appeal and that the only matter before the Board is the Veteran's entitlement to a disability rating in excess of 10 percent for his right knee disability prior to September 11, 2018. For the period prior to September 11, 2018, entitlement to a disability rating in excess of 10 percent for a right knee disability is remanded. The Veteran's right knee disability was rated as 10 percent disabling prior to September 11, 2018 and claims to be entitled to a higher disability rating. During this period of appeal, the Veteran underwent VA examinations in September 2015 and June 2017. The Board finds that the September 2015 and June 2017 VA examinations are inadequate because they do not comply with the requirements of Sharp v. Shulkin, 29?Vet. App.?26, 35 (2017) or Correia?v. McDonald,?28?Vet. App.?158?(2016). First, the September 2015 VA examination did not comply with Correia because the examiner did not test the Veteran's passive motion and pain with weight-bearing and without weight-bearing. The June 2017 VA examination was also deficient under Correia because the examiner reported pain on weight bearing but did not include test results indicating the range of motion limitation on pain with weight bearing. In addition, while the Veteran reported that his knee flares up if he is on his feet a lot, squatting, or going up and down stairs for prolonged periods of time, the examiner stated that he could not provide an estimate of loss of range of motion without resorting to mere speculation because the Veteran was not examined immediately during a flare up. This explanation is inadequate under Sharp. On remand, the RO should request a retrospective opinion related to the severity of the Veteran's right knee disability which complies with the requirements of Correia and Sharp for the period prior to September 11, 2018. Chotta v. Peake, 22?Vet. App.?80 (2008) (when there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted). The matters are REMANDED for the following action: Obtain an addendum opinion from a qualified clinician to determine the severity of the Veteran's right knee disability for the period prior to September 11, 2018. If the examiner determines that an in-person examination is necessary, then an examination should be scheduled. The examiner should provide an estimate of the severity of the Veteran's right knee disability. In doing so, the examiner should estimate the following: a) active motion, passive motion, and pain with weight-bearing and without weight-bearing for the period prior to September 11, 2018. If it is not possible to provide a specific measurement 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). b) Additionally, the examiner should estimate the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups for the period prior to September 11, 2018. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement 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). Melanie J. Mann Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Boal, 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.