Citation Nr: 24016167 Decision Date: 04/16/24 Archive Date: 04/16/24 DOCKET NO. 17-36 152A DATE: April 16, 2024 REMANDED Entitlement to a rating in excess of 10 percent prior to June 12, 2022, for service-connected right knee strain with osteoarthritis, and a rating in excess of 20 percent, thereafter, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from March 1994 to May 1996. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in April 2021. A transcript of the hearing is associated with the claims file. This matter was most recently before the Board in December 2022, where it was remanded for additional development. Specifically, the Board determined that the Veteran should be afforded a VA examination for his right knee disability. While the Board regrets further delay, the matter is remanded as there has not been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding veterans are entitled to compliance with Board remand instructions). The Veteran was afforded a VA knee examination in June 2023. While the Veteran reported flare ups, the examiner determined that there was no change in range of motion estimates during flares. However, this finding is inconsistent with the Veteran's lay statements. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court noted that for a joint examination to be adequate, the examiner "must express an opinion on whether pain could significantly limit" a veteran's functional ability, and that determination "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Furthermore, the Court stated that the examiner must "obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves." Sharp, 29 Vet. App. at 34. The examiner must also "offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans," and the examiner's determination "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Id. at 10. On remand, the AOJ should obtain a new medical examination that provides estimated range-of-motion measurements for flareups. In the June 2023 VA examination, the examiner stated the Veteran does not report or have a history of instability or recurrent subluxation of the knee. However, in the description box for instability, the examiner reported the following: "unable to completely extend knee, stumbling, occasional falls." Given these findings, it is unclear whether the examiner purports that the Veteran has instability or not. The June 2023 examiner also stated that the Veteran does not have a meniscal tear, however, the Veteran has been service-connected for a meniscal tear. See Rating Decision Codesheet. In an October 2023 addendum opinion, the examiner was asked to "identify the onset of the meniscal tear shown by the July 2019 MRI. " The examiner stated the following: Medical record shows Veteran states there was a gradual onset of left knee pain although there is a note from Dr Dmorias who completed a DBQ in 2015 that the veteran had a skiing accident in 1994 and was diagnosed with MCL sprain. No imaging was completed at that time. The examiner's response does not address the question, which is pertinent to the Veteran's right knee increased rating claim. Additionally, it is unclear whether the examiner actually reviewed the July 2019 MRI findings and report based on the response. Therefore, a new opinion is needed. Lastly, in the October 2023 VA addendum opinion, the VA examiner did not provide an adequate explanation as to why she was unable to reconcile the discrepancy in range-of-motion findings on the April 2022 and June 2022 VA knee examinations. Given the inadequacies, remand is warranted. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an orthopedist or similar qualified clinician to determine the current severity of his service-connected right knee disorder. The examiner should evaluate all symptoms related to meniscal injuries. The examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. The examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. If it is not possible to provide a specific measurement or an opinion regarding flare-ups and after repeated use over time, symptoms, or functional impairment 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). To the extent possible, the examiner is asked to consider and reconcile any discrepancy in range-of-motion findings on the April 2022 VA knee examination and the June 2022 VA knee examination. Additionally, to the extent possible, the examiner should identify the onset of the meniscal tear shown by the July 2019 MRI. See July 3, 2019, VA Treatment Record (Patient Notification Letter - Imaging) and July 11, 2019 VA Treatment Record (Surgery Transfer Summarization Note). The examiner should also consider the following range of motion findings: " October 2018 VA treatment record, reporting AROM right knee flexion to 40-60 degrees and extension to 30 degrees; " December 2018 VA treatment record, reporting AROM right knee flexion to 70 degrees and extension to 11 degrees; and " November 2019 VA treatment record, reporting AROM right knee flexion to "45 deg with op pain" and extension to "0 deg with op pain." The examiner must provide all findings, along with a complete rationale for any opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Adeleke, T. 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.