Citation Nr: 18160597
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 17-11 331
DATE:	December 27, 2018
REMANDED
Entitlement to a rating in excess of 10 percent for chondromalacia of the left knee is remanded.
Entitlement to a rating in excess of 20 percent for degenerative disc disease of the thoracolumbar spine with herniated disc, status post microdiscectomy, with residual scar, is remanded.
REASONS FOR REMAND
The Veteran served on active duty from October 1986 to September 1992.
These matters come before the Board of Veterans’ Appeals (Board) on appeal of January 2016 (degenerative disc disease) and February 2016 (chondromalacia) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.  
Although the Board regrets the additional delay, these matters must be remanded for further development, to include adequate VA medical examinations.  See 38 U.S.C § 5103A (d); 38 C.F.R. § 3.159 (c)(4); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Applicable regulations provide that the use of a goniometer in the measurement of limitation of motion is indispensable in examinations conducted within VA.  38 C.F.R. § 4.46.  
The Veteran had a VA examination for his service-connected thoracolumbar spine degenerative disc disease in October 2015.  However, the Veteran asserts that the VA examiner did not conduct range of motion testing with a goniometer, and instead took measurements by “eyeballing” the flexion of his spine.  Range of motion findings procured without the use of a goniometer are not valid for VA rating purposes, and a new examination is necessary.  See 38 C.F.R. § 4.46; Barr, 21 Vet. App. at 312.  The examination report provides range of motion findings, in degrees, albeit without indication as to whether such findings were obtained with or without the use of a goniometer.  With resolution of doubt in the Veteran’s favor, the Board finds that an examination to procure more current range of motion testing results, in which the examiner clearly specifies that a goniometer was used during the examination, would be useful to adjudication of the appeal.
The Veteran also had a VA examination for his service-connected chondromalacia of the left knee in October 2015.  He reported having flare-ups in his left knee manifested by “pounding” pain, and that he uses ice for relief, though it does not always help.  The Veteran reported having functional loss due to repeated use over time, including being unable to do household chores or outside work, slowed walking, avoiding using stairs, and not running or performing sports.  The examiner stated that she was not able to provide an opinion as to whether pain, weakness, fatigability or incoordination, significantly limited functional ability with flare-ups or repeated use over time without resorting to speculation.  As rationale, she indicated that there was no observed or objective basis to answer whether the Veteran was significantly limited by pain, weakness, fatigability or incoordination during flare ups, and that repetitive use testing in an examination environment is not the same as repeated use in a work or home environment.
The Board observes that a controlling, precedential opinion of the United States Court of Appeals for Veterans Claims (Court) was issued during the pendency of this appeal.  In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that flare-ups must be factored into an examiner’s assessment of functional loss in evaluating disabilities of the musculoskeletal system.  The Board may not treat as adequate an examiner’s opinion that he or she could not offer an opinion without resorting to speculation, unless it is clear that the examiner considered all procurable and assembled data, and that such opinion results from a limitation of the medical community at large, and not a limitation based on lack of expertise, insufficient testing, or unprocured testing by the medical examiner.  Id. at 33-35; see also Pettiti v. McDonald, 27 Vet. App. 415, 429-30 (2015) (holding that credible lay evidence of functional loss due to pain, including during flare periods, observed outside of the VA examination context could constitute objective evidence in support of an evaluation).  In light of the holdings above, the Court has indicated that VA examiners have the ability to estimate functional loss due to pain during flare-ups based on a Veteran’s lay statements describing functional loss and the severity, duration, and characteristics of flare-ups. 
The VA examiner’s report is not compliant with the holding in Sharp.  The examiner did not estimate functional loss during flare-ups, and did not indicate whether she could not provide such an estimate based on limitations of her personal knowledge or that of the medical community at large.  See Sharp, 29 Vet. App. at 35-36.  Accordingly, remand for an adequate VA examination and medical opinion is required.  Id.; see Barr, 21 Vet. App. at 312.
The Veteran receives VA treatment for the disabilities at issue; therefore, all outstanding, relevant VA treatment records should be procured.  
The matters are REMANDED for the following action:
1.  Obtain the Veteran’s VA treatment records for the period from November 2016 to the present.
2.  Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected degenerative disc disease of the thoracolumbar spine with residual scar.  The claims file must be made available to the examiner for review, and the examination report should reflect that such review was completed.  All manifestations, including frequency, severity and resultant functional impairment, should be outlined.  The size, characteristics and status of the residual scar should be described.  Range of motion findings should be reported, in degrees, on active and passive motion, on weight bearing and nonweight bearing.  A goniometer must be used to obtain the results of range of motion testing, and the examination report must clearly specify that a goniometer was used.  The VA examiner must describe the degree of additional functional impairment due to pain, including on flare-ups and repeated use, and as warranted, estimate functional loss due to pain during flare-ups and repeated use based on the Veteran’s lay statements describing functional loss and the severity, duration, and characteristics of flare-ups.
Consistent with the Court’s holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is asked to elicit information on the characteristics, severity, frequency, and duration of the Veteran’s flare-ups, and then estimate the extent of any additional functional loss during such periods.  If such an estimate cannot be provided, the examiner must indicate that he or she has considered all procurable and assembled data, and that the inability to provide an estimate results from limitations in the knowledge of the medical community at large, and not limitations of his/her personal knowledge.
3. Thereafter, schedule the Veteran for a VA examination to determine the current severity of his service-connected chondromalacia of the left knee.  The claims file must be made available to the examiner for review, and the examination report should reflect that such review was completed.
All manifestations, including frequency, severity and resultant functional impairment, should be outlined.  Range of motion findings should be reported, in degrees, on active and passive motion, on weight bearing and nonweight bearing.  A goniometer must be used to obtain the results of range of motion testing, and the examination report must clearly specify that a goniometer was used.  The VA examiner must describe the degree of additional functional impairment due to pain, including on flare-ups and repeated use, and as warranted, estimate functional loss due to pain during flare-ups and repeated use based on the Veteran’s lay statements describing functional loss and the severity, duration, and characteristics of flare-ups.
Consistent with the Court’s holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is asked to elicit information on the characteristics, severity, frequency, and duration of the Veteran’s flare-ups, and then estimate the extent of any additional functional loss during such periods.  If such an estimate cannot be provided, the examiner must indicate that he or she has considered all procurable and assembled data, and that the inability to provide an estimate results from limitations in the knowledge of the medical community at large, and not limitations of his/her personal knowledge.
 
4.  Thereafter, readjudicate the claims at issue on appeal.  If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case.  After allowing a reasonable period for response, return the appeal to the Board for review.   
 
U. R. POWELL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	D. Reed, Associate Counsel

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