Citation Nr: 1808353 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 11-15 215 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for arachnoid cyst in the posterior fossa. 2. Entitlement service connection for arachnoid cyst in the posterior fossa, also claimed as cyst in the brain. 3. Entitlement to a rating in excess of 10 percent for right knee osteoarthritis. 4. Entitlement to a rating in excess of 10 percent for left knee osteoarthritis. 5. Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to August 30, 2016. 6. Entitlement to a TDIU as of August 30, 2016. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Kim, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1994 to August 1998 and from December 1999 to May 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In August 2017, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. As the Veteran has explicitly raised the issue of entitlement to a TDIU, and the record contains clinical evidence suggestive of unemployability due to the Veteran's service-connected knee disabilities, the claim of entitlement to a TDIU has been raised as part and parcel of his increased rating claims for bilateral knee osteoarthritis pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes that additional evidence, to include October 2017 Disability Benefits Questionnaire (DBQ) reports for knees and headaches, VA treatment records dated through October 2017, and additional records from the Social Security Administration (SSA), was added to the record after the issuance of a March 2017 supplemental statement of the case. Although the Veteran has not waived initial agency of original jurisdiction (AOJ) consideration such additional evidence, the AOJ will have the opportunity to consider the additional evidence for issues being remanded herein. As the Veteran's petition to reopen the service connection claim for arachnoid cyst in the posterior fossa as well as his claim for a TDIU as of August 30, 2016 are being granted herein, he is not prejudiced in the Board's consideration of this newly received evidence with regard to those claims. The issues of entitlement to service connection for arachnoid cyst, entitlement to a TDIU prior to August 30, 2016, as well as the increased rating claims for bilateral knee osteoarthritis, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. In a final rating decision issued in July 2005, the RO determined that new and material evidence had not been received in order to reopen a claim of entitlement to service connection for arachnoid cyst in the posterior fossa. 2. Evidence associated with the record since the final July 2005 rating decision is not cumulative and redundant of the evidence of record at the time of the decision and does raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for arachnoid cyst in the posterior fossa. 3. As of August 30, 2016, the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities in combination. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for arachnoid cyst in the posterior fossa. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (a) (2017). 2. As of August 30, 2016, the criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence Pertinent Law and Regulations Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). The reopening of a claim of service connection which has been previously and finally disallowed requires that new and material evidence be presented since the last final disallowance of the claim. 38 U.S.C. § 5108. Whether or not the RO reopened a claim is not dispositive, as it is the Board's jurisdictional responsibility to consider whether it is proper for a claim to be reopened. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court held in Shade v. Shinseki that the language of 38 C.F.R. § 3.156(a) creates a low threshold to reopen, and emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." 24 Vet. App. 110, 120-21 (2010). In Shade, the Court stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The presumption of credibility is rebuttable when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). Analysis By way of background, the Veteran's service connection claim for arachnoid cyst in the posterior fossa was originally denied in a July 1999 rating decision. While the Veteran filed a timely notice of disagreement, he did not perfect his appeal after the statement of the case was issued in September 1999. Therefore, the July 1999 rating decision became final based on the evidence then of record. 38 U.S.C. § 7105 (c)(West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). In a subsequent rating decision issued in July 2005, the RO declined to reopen the claim for service connection for arachnoid cyst in the posterior fossa. The Veteran was notified of the outcome, and he did not initiate an appeal. As such, the July 2005 rating decision became final based on the evidence then of record. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1103. The Veteran filed the instant petition to reopen the service connection claim for arachnoid cyst in posterior fossa in January 2009. He contends that he has residual conditions from the claimed arachnoid cyst in the posterior fossa as result of his service, to specifically include performing "pressure checks" on aircrafts. See June 2009 Statement from the Veteran. The evidence previously considered at the time of the last final decision (i.e. in July 2005) includes service treatment records, VA treatment records, and VA examination reports dated in May and June 1999. The Veteran's claim was previously denied based on the RO's conclusion that the record did not establish a nexus between the claimed arachnoid cyst in the posterior fossa and his service. Evidence pertaining to the Veteran's arachnoid cyst in posterior fossa since the last final (i.e. July 2005) rating decision includes VA treatment records dated through October 2017 as well as Seizure Disorders DBQ reports dated in December 2015 and February 2017. While the February 2017 DBQ examiner rendered a negative nexus opinion for the claimed disability, he addressed the nexus elements and offered a more complete view of the nature and etiology of such disability. Further, the February 2017 DBQ examiner suggested a possible secondary relationship between the Veteran's service-connected migraine headaches and the claimed arachnoid cyst residuals, by commenting that "the headaches may have worsened the vaso-vagal response to pain," which is sufficient to at least trigger VA's duty to assist by providing an addendum opinion. See Shade, 24 Vet. App. at 120-21. The February 2017 DBQ report was not previously considered and relates to an unestablished fact necessary to prove the claim; namely, whether the nexus elements of a service connection claim are met. Therefore, the Board finds that new and material evidence has been received and, accordingly, the claim of entitlement to service connection for arachnoid cyst in the posterior fossa is reopened. II. TDIU Pertinent Law and Regulations The Veteran contends that his service-connected disabilities, to include migraine headaches and bilateral knee osteoarthritis, prevent him from obtaining and maintaining a substantially gainful employment. See August 2017 Application for Increased Compensation based on Unemployability. He has reported that he last worked in a full time position as an "avionics tech" for an aviation company in August 2016. See id. A total disability evaluation may be assigned when the schedular evaluation is less than 100 percent where a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If a claimant does not meet the aforementioned criteria, a total disability evaluation may still be assigned, but on a different basis. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Therefore, the rating boards are required to submit to the Director, Compensation Service, for extra-schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). Id. The term unemployability, as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether a veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a living wage). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for a TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that a veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995) (citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994)). The Court has held that the central inquiry in determining whether a Veteran is entitled to a TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Analysis The Veteran's current service-connected disabilities comprise migraine headaches, rated as 50 percent disabling; right and left knee osteoarthritis, each rated as 10 percent disabling; and subluxation of the right and left knees, each rated as 10 percent disabling . His combined evaluation is 60 percent prior to August 17, 2009 and 70 percent thereafter. Thus, he meets the threshold criteria for a TDIU under 38 C.F.R. § 4.16 (a) from August 17, 2009. In the August 2017 Application for Increased Compensation based on Unemployability, the Veteran wrote that he last worked full time in August 2016 and that he became too disabled to work as of August 30, 2016 due to his service-connected migraine headaches and bilateral knee disabilities. He reported that he had been employed as an "avionics tech" working for forty hours or more until August 2016, but that he was "unable to maintain [his] employment because of [his] headaches and knees [due to which he] had to take much time off from work." At the August 2017 hearing, the Veteran testified that his prior work as an avionics technician involved repairing "electronics on the airplane" and that he had difficulty performing his job due to his bilateral knee and migraine headache disabilities. See August 2017 Hearing Tr. at 34, 37. In the October 2017 Headaches DBQ, the examiner found that the Veteran was unemployed at the time and that he last worked in September 2016 as an avionics technician. The examiner then found that the Veteran's service-connected migraine headaches impacted his ability to work based on her assessment that the Veteran "may likely be unable to safely perform work in physical as well as sedentary occupations during times when the headache pain is substantively heightened." In the October 2017 Knee DBQ, the examiner found that the Veteran's bilateral knee osteoarthritis also had an impact on his ability to perform occupational tasks given that "the symptoms are heightened by everyday physical activities," due to which the "bilateral knee condition could periodically hinder [his] ability to safely perform tasks such as heavy lifting, prolonged standing, walking, and other repetitive use and/or weight bearing activities." Based on the foregoing, the Board finds that the competent evidence of record establishes that the Veteran's service-connected disabilities, to include migraine headaches and bilateral knee osteoarthritis, render him unable to secure or maintain a substantially gainful occupation. In this regard, the above-discussed findings from the DBQ examiners who evaluated the service-connected disabilities reflect that the Veteran experiences significant physical impairments that pose potential safety hazards due to the service connected migraine headaches and bilateral knee disabilities. As the noted medical opinions provided adequate rationales for their conclusions, they are afforded full probative weight. See Nieves-Rodriguez, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Furthermore, the Board notes that the Veteran's past work history during the appeal period consisted of working as an avionics technician, presumably a labor-intensive position, without other training for sedentary occupations. Therefore, the Board finds that the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities in combination, and, as such, a TDIU is warranted as of August 30, 2016, the date when the Veteran was last employed in a full time position. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. ORDER New and material evidence having been received, the claim of entitlement to service connection for arachnoid cyst in posterior fossa is reopened and, to this extent only, the benefit is granted. As of August 30, 2016, a TDIU is granted. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A (West 2014); 38 C.F.R. § 3.159 (2017). Arachnoid Cyst in Posterior Fossa The Veteran contends that the claimed arachnoid cyst and its residuals, to include "lightheadedness/blackouts," see January 2005 Statement, are due to service. Specifically, he maintains that such "came on about when [he] was engaged in performing pressure checks on the aircrafts" during service. See July 1999 Statement; see also June 2009 Statement. He has also argued that the claimed disability is due to exposure to asbestos during service. See January 2005 Statement. In light of the medical complexity of the case, the Board will provide a brief summary of the clinical history to date. An August 1993 enlistment examination report for the first period of service (i.e. from August 1994 to August 1998) reflects that the Veteran's neurologic system was found to be clinically normal at the time. In the accompanying report of medical history, the service examiner noted that prior to service, the Veteran had experienced "two episodes of syncope" during which he was "out about 10 seconds." A March 1997 service treatment note indicates that the Veteran reported that "blackouts have been occurring since 9th grade" and that the episodes "beg[an] [with] a sensation of 'heat in pit of stomach' that spread to the rest of body" and resulted in loss of consciousness "for seconds." A March 1997 MRI examination report reflects an impression of arachnoid cyst in the posterior fossa, located in the midline and extending to the left of midline of the posterior fossa. Subsequent service treatment records contain various reports of blackouts and lightheadedness. In this regard, an April 1997 service internal medical/cardiology clinic note reflects that the Veteran exhibited "symptoms consistent with neurocardiogenic or vasovagal syncope." The service physician also noted that the Veteran has had "periodic syncope for the last several years" where most episodes lasted a few seconds, "usually preceded by an aura of flickering lights in the vision and a feeling of 'heat' in the abdomen." Further, a number of service treatment records document headache symptoms in association with syncopal episodes. See March 1998 service treatment note (noting worsening headaches as well as continuing episodes of blackouts and lightheadedness); June 1998 service treatment note (indicating that "[headaches] were going on before [a] blackout" the day before). A May 1998 report of medical assessment notes "hx (history) [of] vaso-vagal attacks." Since the Veteran's discharge from his first period of service (i.e. in August 1998), a May 1999 VA examiner noted that the Veteran had a history of "multiple syncopal episodes, brain cyst, and migraine headaches," although it was "unclear whether these episodes [were] related to each other." A June 1999 VA examiner also noted a history of syncope, although "etiology [was] unknown," while noting that he "would consider vasovagal syncope" and a seizure disorder could not be excluded at the time. Available service treatment records for the second period of service (i.e. from December 1999 to May 2004) are silent as to complaints or treatments referable to the claimed arachnoid cyst residuals. The December 2015 DBQ examiner diagnosed generalized non-convulsive seizures with a history of syncopal spells associated with the claimed arachnoid cyst, but did not provide a nexus opinion. The February 2017 DBQ examiner corrected the December 2015 examiner's diagnosis of a seizure disorder and found that the correct diagnosis was "syncopal episodes," specified as "vaso-vagal syncopal episodes associated with overheated situations, dehydration, and in response to extreme pain." The February 2017 examiner discerned that "the presence of the arachnoid cyst is contributory" to such syncopal episodes, but indicated that the claimed arachnoid cyst was likely a developmental disease or defect given that "most commonly, arachnoid cysts develop embryo logically during the development of the brain and skull." In this regard, the Board notes that while congenital/developmental diseases may be recognized as service connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations, for congenital/developmental defects, service connectable cannot be established, unless there is additional disability due to disease or injury superimposed upon such defect during service. VAOPGCPREC 82-90 (1990). Given that there no medical opinion addressing this important distinction, on remand, the AOJ should obtain an addendum opinion as to whether the claimed arachnoid cyst disability constitutes congenital/developmental defect, and if so, whether there is any additional disability superimposed upon such defect during service. If the claimed disability is deemed to be a congenital/developmental disease, the examiner should determine whether there is clear and unmistakable (i.e. undebatable) evidence that such pre-existed and was not aggravated during both periods of service. The examiner should also determine whether the claimed arachnoid cyst disability was caused or aggravated by the service-connected migraine headaches in light of the above- referenced clinical evidence containing reports of arachnoid cyst residuals in association with complaints of headaches during and since service. Moreover, the record does not currently contain the Veteran's separation examination report for his first period of service. Also missing are his enlistment and separation examination reports for his second period of service. While on remand, the AOJ should undertake appropriate action to obtain such service examination reports, and if any examination report is not available, the AOJ should make a formal finding of unavailability and notify the Veteran as to the steps that were taken to obtain it and an explanation as to the reason(s) it is unavailable. Finally, at the August 2017 hearing, the Veteran identified outstanding VA treatment records Center dating from 2004 from a VA Medical Center located in Savannah, Georgia. See August 2017 Hearing Tr. at 5-6. Given that such identified records have not been associated with the claims file, while on remand, the AOJ should attempt to obtain those records as well as updated VA treatment records and other outstanding private treatment records relevant to the present case. Bilateral Knee Osteoarthritis With regard to the increased rating claim for bilateral knee osteoarthritis, in October 2017, the Veteran was last afforded with a DBQ examination. The October 2017 DBQ examiner noted the Veteran's report of bilateral knee functional loss due to repeated use over time, but the examiner did not attempt to identify the level of functional loss due to repetitive movements after having considered all procurable and assembled medical evidence, to include eliciting relevant information from the Veteran as to the repetitive movements. C.f. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Similarly, a November 2015 DBQ examiner noted the Veteran's reports of bilateral knee flare-ups, but declined to identify any additional functional loss in terms of range of motion without an explanation. See id. On remand, the AOJ should obtain a new VA examination with a retrospective opinion, if possible, for evaluation of the Veteran's bilateral knee disability, including assessments of any bilateral knee functional loss during flare-ups and on repeated use in terms of range of motion. See Sharp, 29 Vet. at 33; see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). TDIU prior to August 30, 2016 It appears that the Veteran has had varying employment statuses throughout the appeal period prior to August 30, 2016. In this regard, a February 2013 SSA decision found that the Veteran has not been gainfully employed since November 2011. In the August 2017 Application for Increased Compensation based on Unemployability, the Veteran expressed that he was employed from September 2014 through August 2016, but he limited his employment history to positions dating from September 2014 forward. On remand, the AOJ should ask the Veteran to complete the form for all the years prior to September 2014 since the date of claim (i.e. since January 2009). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a VA form 21-8940, and instruct him to fill it out return it to the RO. He must complete the form for the five years prior to September 2014. Additionally, ask the Veteran to submit copies of his tax returns for those years and a statement that the copies are exact duplicates of the returns filed with the IRS. If the Veteran is unable or unwilling to furnish the required evidence, follow the procedures in M21-1, Part I, 1.C.1. or ask the Veteran submit IRS Form 4506-T "Request for Transcript of Tax Return." The following link is for reference purposes: http://www.irs.gov/pub/irs-pdf/f4506t.pdf. 2. Provide the Veteran with an opportunity to identify any outstanding private or VA treatment records relevant to his claims, to include VA treatment records from Savannah VA Medical Center dating from 2004 forward. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. 3. After obtaining all outstanding records, return the claims file, to include a copy of this remand, to the February 2017 DBQ examiner, if available, for an addendum opinion. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. Following a review of the claims file, the reviewing examiner is requested to furnish an opinion with respect to the following questions: (A) The examiner should identify all diagnoses pertinent to arachnoid cyst in the posterior fossa, present since the date of the claim (i.e. since January 2009), even if such diagnosis is currently asymptomatic or resolved during the pendency of the appeal. (B) The examiner should opine whether the Veteran's arachnoid cyst in the posterior fossa constitutes a disease or defect as defined by VAOPGCPREC 82-90 (providing that a congenital disease is a congenital abnormality that is subject to improvement or deterioration). (C) If the examiner finds that the Veteran arachnoid cyst in posterior fossa is considered a congenital or developmental defect, the examiner should opine whether there was any superimposed disease or injury in connection with the congenital defect during service. (D) If the examiner finds that the Veteran arachnoid cyst in posterior fossa is considered a congenital or developmental disease, the examiner should opine whether such disability clearly and unmistakably (i.e. undebatably) pre-existed the first period of service (i.e. from August 1994 to August 1998) and undebatably was not aggravated during service. Specific to the second period of service (i.e. from December 1999 to May 2004), if the claimed arachnoid cyst disability was noted on enlistment examination (if obtained), the examiner should opine whether such disability increased in service, and if so, whether there is clear and unmistakable evidence that such increase is due to the natural progress of that condition. (E) If there is no clear and unmistakable evidence that the claimed disability pre-existed the Veteran's service, then for each diagnosis identified in (A), the examiner should opine whether it is at least as likely as not (a 50 percent probability or greater) that the disorder is directly related to the Veteran's service, to include performing pressure checks on aircrafts and asbestos exposure. (F) For each diagnosis identified in (A), the examiner should opine as to whether such was caused OR aggravated (beyond natural progression) by the Veteran's service-connected migraine headaches. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation (specifying the baseline level of disability and current level of severity, based on consideration of VA's rating schedule). In answering the above questions, the examiner is directed to consider and discuss all pertinent clinical records, to include but not limited to the referenced service treatment records documenting in-service complaints and treatments for "blackouts/lightheadedness" associated with headaches. All opinions expressed should be accompanied by complete rationale. 4. Schedule the Veteran for VA examinations with an appropriate professional to determine the nature, extent, and severity of his service-connected right and left knee osteoarthritis. All indicated tests should be performed, including range of motion findings expressed in degrees and in relation to normal range of motion. The examination must include testing results on both active and passive motion, and in weight-bearing and nonweight-bearing. The examiner should assess where pain begins on the Veteran's initial range of motion and upon repetitive testing. The examiner should also describe any pain, weakened movement, excess fatigability, and incoordination present. If the examiner is unable to conduct such testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. Further, the examiner must estimate any functional loss in terms of additional degrees of limited motion of both knees experienced during flare-ups and repetitive use over time. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran's description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. The examiner must also, to the extent possible, provide a retrospective medical opinion concerning the additional degrees of limited motion of both knees experienced during flare-ups, to include as discussed the November 2015 DBQ examination. If this opinion cannot be provided, the examiner should explain why this is the case, keeping in mind the concerns outlined in the paragraph above. 5. After completing the above actions, to include any other development as may be indicated by any response received as a consequence 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 of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matters 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs