Citation Nr: 1337628 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 05-02 569 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an evaluation in excess of 10 percent for degenerative changes of the right knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active service from March 1990 to November 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In May 2009, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the testimony has been associated with the claims file. In August 2009, the Board remanded the appeal for further development. In an April 2011 decision, the Board denied a disability rating in excess of 10 percent for degenerative changes of the right knee. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2012 memorandum decision, the Court reversed the Board's finding of compliance with the August 2009 remand instructions and remanded the appeal for a new VA examination. Pursuant thereto, the Board remanded the appeal in February 2013. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Unfortunately, it is necessary to remand this appeal once again because there was not substantial compliance with the February 2013 Court-ordered Board remand. See Stegall v. West, 11 Vet. App. 268 (1998) (Board remand instructions are neither optional nor discretionary, and compliance is required); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (the veteran is entitled to substantial compliance with the Board's remand directives). Specifically, pursuant to the Court remand, the Board was to obtain an examination with an opinion as to the question of the level of impairment experienced during the Veteran's flare-ups. However, while the July 2013 examiner reviewed the complaints of flare-ups noted on the previous examinations, he said that he could not render an opinion as to any additional limitations during flare-ups, because the condition was not currently flared up and that therefore it was impossible to offer a medical opinion regarding flare-ups without resorting to speculation. This was the same rationale as noted on the prior examination reports, which the Court expressly found inadequate. In particular, no explanation was provided as to why the histories concerning the flare-ups noted in the file were not sufficient for an opinion. It must be emphasized that the Board cannot theorize as to possible reasons for the inability to provide an opinion. See Jones v. Principi, 16 Vet. App. 219, 225 (2002) (Board must provide a medical basis other than its own unsubstantiated conclusions to support its ultimate decision); Colvin v. Derwinski, 1 Vet.App. 171 (1991) (Board is prohibited from making conclusions based on its own medical judgment). A conclusion that a diagnosis or etiology opinion is not possible "without resort to speculation" is a medical conclusion just as much as a firm diagnosis or a conclusive opinion. Therefore, the conclusion must be supported by evidence. Before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence. The Board should ensure any such finding was well supported by the facts and data and reflects that the examiner has considered "all procurable and assembled data," by obtaining all tests and records that might reasonably illuminate the medical analysis. Jones v. Shinseki, 23 Vet. App. 382 (2010). Here, the examiner's stated rationale indicates that he would be unable to provide such an opinion unless he could examine the knee during a flare-up. However, if such is the case, the examiner must explain why he cannot provide an opinion, based on the evidence of record. Therefore, the claims file must be returned to the examiner, if available, for an opinion, with examination if necessary, as to the additional functional impairment caused during flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). Accordingly, the case is REMANDED for the following action: 1. Inform the Veteran that, because his right knee flare-ups are of brief duration, VA cannot schedule an examination during a flare-up, but that it would be helpful if he sought outpatient treatment when he next suffers a flare-up. In this regard, it is not VA policy to attempt to exercise a Veteran into a flare-up during an examination. Inform him that if he does seek treatment during a flare-up, he should notify the RO/AMC so that the record can be obtained, or ask for a copy himself and submit that report. 2. Obtain all VA treatment records dated from August 2013 to the present. 3. Return the claims file to the examiner who examined the Veteran in July 2013, if available, for a supplemental opinion. If the examiner needs to examine the Veteran again, or obtain additional studies, these actions should be completed before the final opinion. The examiner is asked to review the file, including the following evidence of limitations caused by flare-ups: * an August 2003 VA examination report noting complaints of intermittent flare-ups with stiffness; * an April 2005 VA examination report noting that the Veteran's gait became antalgic after less than three minutes on a treadmill; * an April 2007 VA examination report noting complaints of weekly flare-ups lasting two to three days that the Veteran worked through; * the May 2009 hearing testimony that he has popping, locking, and instability during flare-ups; * an October 2009 VA examination report noting complaints of flare-ups with over-activity or weather changes lasting one to three days three to four times in the past six months that slowed down the Veteran tremendously at work; and * the July 2013 VA examination report in which he reported that he got flare-ups with excessive use, especially with walking for extended distances, and that flare-ups occurred about 4-5 times per year, but he continued to work through the flare-up. In addition, the examiner is asked to provide an opinion as to the extent to which the Veteran's right knee function is additionally limited during flare-ups, including due to pain or when the Veteran uses the joint repeatedly over a period of time, to include: * Is it at least as likely as not that lateral instability or recurrent subluxation would be present during flare-ups? * Is it at least as likely as not that the Veteran's service-connected right knee disability would be manifested by dislocated meniscus, with locking, pain and effusion into the joint, during flare-ups? * Is it at least as likely as not that additional limitation of motion during flare-ups would result in limitation of flexion to 30 degrees or less (140 degrees being full range of flexion)? * Is it at least as likely as not that additional limitation of motion during flare-ups would result in limitation of extension to 15 degrees or more (0 degrees being full range of extension)? * Is it at least as likely as not that additional limitation of motion during flare-ups would result in limitation of flexion to 45 degrees or less, and limitation of extension to 10 degrees or more? * All other functional impairment associated with flare-ups should be described as well as quantified to the extent feasible. If the examiner is unable to provide an opinion as to any of the above without resort to speculation, a detailed explanation must be provided. If it is because the Veteran is not in the midst of a flare-up at the time of the examination, the examiner must explain why an opinion cannot be made in light of the descriptions of the Veteran's condition during flare-ups contained in the record. 4. After assuring compliance with the above development, and any other notice and development action required by law, readjudicate the claim for an increased rating for degenerative changes of the right knee. If the claim is denied, the Veteran and his representative should be provided with a supplemental statement of the case, and given an opportunity to respond, before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).