Citation Nr: 18900005
Decision Date: 08/15/18	Archive Date: 08/15/18

DOCKET NO. 180515-29
DATE:	August 15, 2018
REMANDED
Entitlement to an increased rating in excess of 10 percent for status post left knee reconstructive surgery for severe internal derangement (a left knee disability) is remanded.
REASONS FOR REMAND
1. Entitlement to a rating in excess of 10 percent for status post left knee reconstructive surgery for severe internal derangement is remanded.
The Agency of Original Jurisdiction (AOJ) obtained a July 2017 VA examination report prior to the September 2017 rating decision on appeal.  However, this examination report did not adequately consider all the Veteran’s symptomology associated with his left knee disability at that time.
During the July 2017 VA examination, the Veteran reported having flare-ups of the left knee, which resulted in loss of balance.  Regarding the flare-ups, the VA examiner noted that the examination was not being conducted during a flare-up.  She explained that additional limitation of function due to flare-ups could not be determined because the Veteran was not having a flare-up during the examination.   In this case, and in accordance with Sharp v. Shulkin, 29 Vet. App. 26 (2017), the mere fact that the Veteran was not experiencing a flare-up at the time of the July 2017 VA examination is insufficient rationale as to whether additional limitation of function due to flare-ups could be determined.  A remand is required as the July 2017 VA examination report contains a pre-decisional duty to assist error.  
The matter is REMANDED for the following action:
Schedule a VA examination to assist in determining the level of severity of the left knee disability.  The VA examiner should review the evidence in the record.  
An adequate examination includes an opinion discussing any additional limits on functional ability on repeated use or during flare-ups. The fact that a veteran is not experiencing a flare-up at the time of the examination is not, standing alone, sufficient reason for an examiner to decline to opine on functional loss during a flare-up. Please consider the lay and medical evidence to comment, to the extent possible, on the frequency, duration, characteristics, and/or severity of functional loss during a flare up.
 
LAURA E. COLLINS
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Department of Veterans Affairs

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