Citation Nr: 18124074
Decision Date: 08/06/18	Archive Date: 08/03/18

DOCKET NO. 13-24 832
DATE:	August 6, 2018
REMANDED
Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the right knee is remanded.
Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the right knee is remanded.
REASONS FOR REMAND
The Veteran served on active duty in the United States Marine Corps from August 1972 to August 1992.
In October 2014, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ).  A transcript of the proceeding has been associated with the claims file.  The law requires that the VLJ who conducts a hearing on appeal must participate in any decision made on that appeal.  38 U.S.C. § 7107(c) (2012); 38 C.F.R. § 20.707 (2017).  In November 2015, the Board sent a letter to the Veteran that explained that the VLJ who presided over the hearing was no longer available to participate in the appeal and offered another hearing before a different VLJ if he wished.  He was notified that if he did not desire a new hearing or did not respond within 30 days, the case would be reassigned.  The Veteran did not respond within the allotted timeframe, thus, the Board will proceed with the matter on appeal.
These matters were previously before the Board in March 2016, at which time increased ratings for each knee were denied.  The Veteran timely appealed to the Court of Appeals for Veterans Claims (Court) and in December 2016, pursuant to a Joint Motion for Remand (JMR), the Board’s decision was vacated and remanded.  Subsequently in a June 2017 Board decision, the appeals were again denied and the Veteran again appealed to the Court.  Pursuant to a JMR, the Board’s decision was again vacated and remanded in an April 2018 order.
The December 2016 and April 2018 JMRs found that the Board provided an inadequate statement of the reasons and bases for its findings and conclusions in the March 2016 and June 2017 decisions because consideration and analysis of the Veteran’s lay statements regarding his symptoms and additional functional loss during flare-ups was insufficient.  
The Board previously based its decisions on the results of two VA examinations, private medical records, and lay statements.  In October 2010, the Veteran’s private physician completed a Family and Medical Leave Act (FMLA) certification form which stated that his bilateral knee disability would cause episodic flare-ups periodically.  He noted that the Veteran’s syndrome can wax and wane, but that it can also become chronic.
At a November 2010 orthopedic evaluation, the Veteran reported increased pain in his knees from doing a lot of activities, including going up and down stairs, with more pronounced pain in his left knee than in his right knee.
The Veteran submitted a statement in November 2010 which described increased pain in his knees from climbing up and down stairs and a burning sensation around his knee cap when he bent his knees.  The Veteran’s wife also submitted a statement which reported that extensive sitting and driving aggravated his knee pain.  
At the December 2010 VA examination, the Veteran reported weakness, stiffness, swelling, heat, giving way, lack of endurance, fatigability, tenderness, effusion, and pain.  He indicated that he experienced flare-ups as often as one time per day, lasting for one day with a pain severity level of 9/10, precipitated by physical activity and stress.  They occurred spontaneously and he reported that during a flare-up he could not sit or stand for too long of a period.  
In his September 2011 Notice of Disagreement, the Veteran stated that the pain in his bilateral knees had progressively worsened over the years to the point where standing or sitting for periods of time, climbing stairs, and ease of mobility were not possible.
At the October 2014 hearing, the Veteran testified that he had pain in his knees 95 percent of the time, and that if he did any type of walking at any distance, he also experienced stiffness and sharp pain in his knees.  With standing for a period of time, he had sharp pain in his legs and swelling in his knees.  He noted that with movement, he frequently experienced locking, and with driving, his knees stiffened.  He also reported occasional popping in his knees where they slipped out of joint.  The Veteran also stated that he had instability in his knees.
In the most recent July 2015 VA examination, the examiner stated that the Veteran did not report flare-ups of the knees and did not provide any further analysis of functional loss or decreased range-of-motion during flare-ups.  Within the record are numerous statements by the Veteran and his wife that he did indeed experience flare-ups with increased symptomatology.  Additionally, there are several other inconsistencies in the examiner’s findings with the evidence of record.  The Veteran and his wife have also stated that physical examination of his knees was not conducted during the evaluation.  
Following the Court’s April 2018 decision, statements from the Veteran and his wife were submitted in June 2018.  The Veteran stated that his knees are regularly in pain, and frequently swell, pop, grind, and lock up.  He again reported being unable to sit or stand for long periods of time and having trouble climbing stairs and driving.  He noted that he regularly experienced flare-ups in both knees, often after physical activity or stress.  During flare-ups, he underwent locking, burning while walking, sharp pain, giving way while climbing stairs, and dull pain when standing and sitting for short periods of time.  He estimated that the range-of-motion in his knees during flare-ups was 50 percent of his normal range-of-motion.  During flare-ups, he reported using a cane for support.  The Veteran’s wife stated that his symptomology was increased with prolonged sitting, standing, and physical activity, and that he had flare-ups at least weekly where his range-of-motion was less than 50 percent.  
Based on the foregoing, the Board finds that a new VA examination is needed to provide an adequate picture of the full extent and severity of the Veteran’s bilateral knee disability, taking into account the lay statements of record regarding increased pain and other symptoms during flare-ups.
The matters are REMANDED for the following action:
1. Schedule the Veteran for an orthopedic examination with an appropriate medical professional other than the clinician who conducted the July 2015 VA examination to ascertain the current severity and manifestations of his service-connected left and right knee disabilities.  
(a.) All studies, tests, and evaluations deemed necessary by the examiner should be performed, including physical examination of the Veteran.  
(b.) In particular, in order to comply with the Court’s precedential decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the VA examination should include range-of-motion testing in active and passive motion, weight-bearing and nonweight-bearing.  If this is not possible, an explanation should be provided.  
(c.) Further, in order to comply with the Court’s precedential decision in Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017), the examiner is asked to ascertain adequate information so as to render an opinion on the extent of the Veteran’s symptoms and decreased range-of-motion during a flare-up, i.e. frequency, duration, characteristics, severity, or functional loss.  Special attention is directed towards the October 2010 FMLA certification form, November 2010 statements, December 2010 VA examination, September 2011 statement, and October 2014 hearing testimony, and the June 2018 statements estimating a 50 percent loss of range-of-motion.  The examiner is asked to review the medical evidence and examination results and, considering the lay statements of record, evaluate the complaints of periodic flare-ups in terms of range-of-motion and additional functional limitation.  
2.  After completing the above, and any other development as may be indicated by any response received because of the actions taken in the preceding paragraphs, the Veteran’s claims should be readjudicated based on the entirety of the evidence.  If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case.  An appropriate period should be allowed for response.  The case should thereafter be returned to the Board for further appellate consideration, if otherwise in order. 
 
L. M. BARNARD
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Rachel E. Jensen, Associate Counsel

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