Citation Nr: 20043701 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 13-18 215 DATE: June 29, 2020 REMANDED The issue of a rating in excess of 20 percent from September 17, 2009, to November 16, 2010; in excess of 30 percent from January 1, 2012, to February 28, 2016; and in excess of 60 percent since February 29, 2016, for right knee arthritis post meniscectomy and post total knee arthroplasty is remanded. The issue of a rating in excess of 10 percent from September 17, 2009, to March 24, 2019, and in excess of 20 percent since March 25, 2019, for left knee arthritis post meniscectomy is remanded. The issue of a combined rating in excess of 50 percent from September 17, 2009, to November 17, 2010, and from January 1, 2012, to February 29, 2016, is remanded. The issue of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to February 29, 2016, to include on an extraschedular basis, is remanded. REASONS FOR REMAND The Veteran had active service from June 1966 to August 1972. The procedural histories of these claims have been thoroughly set forth in the February 2018, October 2018, and May 2019 Board and Court of Appeals for Veterans Claims (Court or CAVC) remands and decisions. 1. Entitlement to a rating in excess of 20 percent from September 17, 2009, to November 16, 2010; in excess of 30 percent from January 1, 2012, to February 28, 2016; and in excess of 60 percent since February 29, 2016, for right knee arthritis post meniscectomy and post total knee arthroplasty is remanded. 2. Entitlement to a rating in excess of 10 percent from September 17, 2009, to March 24, 2019, and in excess of 20 percent since March 25, 2019, for left knee arthritis post meniscectomy is remanded. 3. Entitlement to a combined rating in excess of 50 percent from September 17, 2009, to November 17, 2010, and from January 1, 2012, to February 29, 2016, is remanded. 4. Entitlement to TDIU prior to February 29, 2016, to include on an extraschedular basis is remanded. The matters are REMANDED for the following action: 1. BACKGROUND INFORMATION FOR RO ADJUDICATOR: The Veteran contends the March 2013 and February 2016 VA medical examinations were inadequate to determine the severity of his bilateral knee disabilities. Specifically, the March 2013 examiner did not indicate whether testing to determine pain on weight or non-weight bearing was performed nor provide the reasons for why such testing was not necessary, in compliance with the Court’s ruling in Correia v McDonald, 28 Vet. App. 158 (2016). Additionally, the February 2016 examiner did not indicate whether the Veteran demonstrated functional loss during flare-ups nor delineate in degrees any limitation of motion specifically attributable to pain in compliance with Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pursuant to the October 2018 CAVC’s partial vacatur and remand of the Board’s February 2018 decision, the Board requires addendum retrospective opinions to fully and fairly evaluate the Veteran’s increased rating claims. The Veteran’s claim for a combined rating in excess of 50 percent during the period on appeal is therefore remanded as inextricably intertwined with his increased ratings claims. Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc). Finally, the RO did not refer the Veteran’s claim for TDIU prior to February 29, 2016, to the Director of Compensation for consideration in the first instance, as directed in the May 2019 Board decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Return the claims file to the March 2013 and February 2016 VA examiners, if still employed by VA and request they re-review the claims file and respond to the inquires below. If either examiner is not available, arrange for another appropriate VA examiner to provide a retrospective medical opinion to assist in determining the severity of the Veteran’s bilateral knee disabilities during the period on appeal. All appropriate tests, studies and consultations should be accomplished, including a new medical examination if necessary, and all clinical findings should be reported in detail in the narrative portion of the examination report. After a thorough review of the claims file, provide an opinion, in degrees, regarding the following items for the periods indicated: a) What is the best- and worst-case severity of the Veteran’s weight-bearing and non-weight-bearing ROM information for his right and left knees based on objective and subjective medical findings from September 17, 2009, to November 16, 2010, and since January 1, 2012? b) What is the best- and worse-case severity of the Veteran’s passive ROM for his right and left knees based on objective and subjective medical findings from September 17, 2009, to November 16, 2010, and since January 1, 2012? c) What is the best- and worst-case severity of the Veteran’s functional loss during flare-ups and/or functional loss due to pain for his right and left knees based on objective and subjective medical findings from September 17, 2009, to November 16, 2010, and since January 1, 2012? It is imperative that the examiner comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion caused by flare-ups OF EACH KNEE. The examiner should note any comments by the Veteran regarding the frequency, severity, duration, and type of symptoms experienced during flare-ups and provide an opinion, based on that information. The examiner’s comments should include whether there was additional limitation of motion following repetitive testing due to pain, weakness, fatigability, etc. Any determination concerning this functional loss or loss during flare-ups should be expressed in degrees of additional range of motion loss. If there is pain during range of motion testing, the examiner MUST state the degrees where the pain starts. The examiner must review the entire record in conjunction with rendering the requested opinions. IN ADDITION TO ANY RECORDS THAT ARE GENERATED AS A RESULT OF THIS REMAND, the VA examiner’s attention is drawn to the following: * In June 2009 the Veteran’s physician advised the Veteran to limit weight bearing activity due to right knee pain. See “Medical Treatment Record – Non-Government Facility,” received July 18, 2019, page 9 of 117. * In November 2009 the Veteran complained of bilateral knee pain, right more than left. The examiner noted arthralgia, joint stiffness, but no joint swelling in the Veteran’s right knee. The Veteran’s right knee demonstrated crepitus, marked medial osteoarthritis, joint line tenderness, and small effusion. See “ Medical Treatment Record – Non-Government Facility,” received March 9, 2010, pages 1-11 of 21. * December 2009 MRI of the Veteran’s right knee, which indicated a completely degenerated meniscus, chronically torn anterior cruciate ligament (ACL), and severe osteoarthritis. See “Medical Treatment Record – Non-Government Facility,” received January 7, 2010. * In December 2009 the Veteran complained of worsening pain, to include with weight-bearing, lifting, exercises, walking or with any other motion of the knee, plus intermittent locking and catching. The Veteran reported pain relief with rest, elevation and ice. Right knee examination revealed extension of -5 to 95 degrees, tenderness, and severe crepitus during range of motion (ROM) testing. X-rays and MRI imaging revealed significant and severe degenerative joint disease (DJD), with severe bone spurs and osteophyte formations. He was given steroid injections to relieve the pain. See “Medical Treatment Record – Non-Government Facility,” received June 8, 2011, page 3 of 25. * In January 2010 the Veteran complained of severe bilateral knee pain. The examiner noted arthralgia, joint swelling and stiffness, but no soft-tissue swelling. The Veteran was advised to reduce physical activity, continue current medication, and consider arthropathy of the right knee. See “ Medical Treatment Record – Non-Government Facility,” received March 9, 2010, pages 1-11 of 21. * In April 2010 the Veteran reported a recent injury and fall. X-rays revealed severe arthritis with valgus deformity in the right knee. See “Medical Treatment Record – Non-Government Facility,” received December 22, 2011, page 34 of 45. * July 2010 bone scan prior to prosthesis placement. The examiner noted abnormal labeling of both knees, consistent with degenerative arthritis. See Id. at page 42 of 45. * In November 2010 the Veteran underwent total knee arthropathy of his right knee. *June 2011 statement when the Veteran reported his history of surgeries, treatments for pain and additional symptoms such as weakness resulting in instances of falling down. See “VA 21-4138 Statement in Support of Claim,” received June 8, 2011. * March 2013 VA medical examination report. See “CAPRI,” received April 15, 2013. * February 2016 VA medical examination report. See “C&P exam,” received March 3, 2016. * August 2019 VA medical examination report. See “C&P Exam,” received August 15, 2019. A thorough explanation must be provided for the opinion rendered. If the examiner cannot provide the requested opinion without resorting to speculation, s/he should expressly indicate this and provide supporting rationale as to why the opinion cannot be made without resorting to speculation. The examiner should schedule a new examination only if necessary to provide an adequate opinion. THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED, AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THE EXAMINATION/OPINION SUFFICIENT. 3. Following the review and any additional development deemed necessary, readjudicate the claims. Should the claims not be granted in its entirety, issue an appropriate supplemental statement of the case (SSOC) and forward the claims to the Board for adjudication. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. §§ 5109B, 7112 (West 2014). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Anwar, Attorney-Advisor The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.