Citation Nr: 21000157 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 12-12 137 DATE: January 4, 2021 REMANDED The appeal for an increased disability rating in excess of 10 percent from July 27, 2009, to April 13, 2011, and from August 1, 2011, to July 7, 2013, excluding periods of temporary total disability, for service-connected degenerative joint disease (DJD) of the left knee status-post medial meniscectomy is remanded. The appeal for an increased disability rating in excess of 30 percent from September 1, 2014, for service-connected left total knee arthroplasty is remanded. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active duty service in the United States Army from August 1986 to August 1990. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). As an initial matter, the Board notes that the Veteran submitted a September 2020 request that the claim be advanced on the docket based on financial hardships due to Covid-19. Appeals must be considered in docket number order but may be advanced if sufficient cause is shown. 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). Sufficient cause includes financial hardships and any motion for advancement should be supported by pertinent documentation. Here, the Board finds there is sufficient evidence to show that the Veteran is experiencing financial hardship. Therefore, the Board hereby grants the motion and the case is advanced on the docket. In May 2018, the Board denied these claims. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Veterans Court). In June 2019 Order, the Veterans Court vacated and remanded the matter in light of the parties’ Joint Motion for Remand (JMR). In November 2019, the Board remanded the case in compliance with the Veterans Court’s order. The matter is once again before the Board. 1. The appeal for an increased disability rating in excess of 10 percent from July 27, 2009, to April 13, 2011, and from August 1, 2011, to July 7, 2013, excluding periods of temporary total disability, for service-connected DJD of the left knee status-post medial meniscectomy is remanded. 2. The appeal for an increased disability rating in excess of 30 percent from September 1, 2014, for service-connected left total knee arthroplasty is remanded. In the JMR, the parties agreed that a retrospective medical opinion was necessary to address the claims. See JMR at pg. 4. VA’s duty to assist may include a need to obtain a “retrospective medical opinion’ to ascertain past severity of disability where a rating must be assigned for a long-ago period and insufficient evidence is presented to support rating the disability over that period.” Chotta v. Peake, 22 Vet. App. 80 (2008). Despite the additional and regrettable delay, another remand is required because there was not substantial compliance with the Board’s November 2019 remand directives. Although it appears the AOJ made efforts to comply with the Board’s directives, the VA examiner did not provide an adequate retrospective opinion, nor were the examiner’s credentials made available within the opinion as directed in the prior remand. As the Board has been directed by the Veterans Court to obtain the retrospective opinion in order to comply with the law, the Board and VA must ensure that the opinion is adequate. Therefore, another remand is required and a new VA examination. 3. Entitlement to a TDIU rating is remanded. The Veteran’s claim for a TDIU rating is inextricably intertwined with the claims remanded herein. Therefore, a decision on the claim for entitlement to a TDIU rating will be deferred pending action on the remanded claims. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Please note that, by law, ALL remanded claims must be processed expeditiously. 2. Schedule the Veteran for a VA examination (OR TELEHEALTH INTERVIEW, REVIEW OF THE RECORD, ETC., IF AN IN-PERSON EXAMINATION IS NOT FEASIBLE) (EXCLUDING ALL PRIOR EXAMINERS) to include retrospectively, addressing the severity of the Veteran’s service-connected left knee disability, from July 2009 to present. The claims folder should be made available to the examiner for review before the examination; the examiner must indicate that the claims folder was reviewed. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted at this time, and included in the examination report. The examiner’s credentials MUST be documented in the examination report. The examiner should conduct range of motion studies and indicate whether there is weakened movement, excess fatigability, incoordination or pain. These determinations should be expressed, if possible, in terms of the degree of additional range-of-motion loss that is due to any weakened movement, excess fatigability, incoordination, or pain, to include on repetitive use or on flare-ups. The examiner should address whether at any time since June 2009 the Veteran’s left knee disability manifested by limitation of motion (flexion/extension), ankylosis, recurrent subluxation or lateral instability, dislocated semilunar cartilage, symptomatic removal of semilunar cartilage, impairment of the tibia and fibula and/or genu recurvatum. The examiner should address the severity of any such manifestations during the applicable period. The examiner should, to the extent possible, express an opinion as to whether the Veteran experienced additional limits of functional ability, to include on repeated use or flare-ups due to pain, weakened movement, incoordination or excess fatigability during the time period under review. The examiner should fully describe the severity of such functional limitation, if any, and should indicate whether such functional limitation resulted in additional degrees of limited motion, if possible. The examiner is reminded that the Veteran is competent to provide information about observable symptoms and events. The examiner should assume, for the purposes of the opinions, that the Veteran’s reports are both accurate and credible. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. If the examiner determines that a decision cannot be made without resort to mere speculation, then it should be clear in the examiner’s remarks as to why such is the case. In other words, simply stating that an opinion cannot be provided without resort to mere speculation is not acceptable without a detailed reason as to why this is so. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Williams, Associate Counsel 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.