Citation Nr: 21000871 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 15-42 676A DATE: January 6, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for left knee osteoarthritis is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for a left eye disability is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1964 to February 1966. This case has been before the Board multiple times, most recently in August 2020 when it was remanded for additional developments.  There has not been substantial compliance with the remand directives and the claims must be remanded again.  Stegall v. West, 11 Vet. App. 268 (1998).    Entitlement to an initial rating in excess of 10 percent for left knee osteoarthritis is remanded. The Board remanded the Veteran’s left knee osteoarthritis claim to address the Veteran’s reports of flare-ups throughout the period on appeal, including in a February 2020 statement. The Board recognizes that at the November 2020 VA examination the Veteran reported not having flare-ups of his left knee disability. However, the examiner did not discuss or attempt to elicit any information regarding the Veteran’s reports of flare-ups throughout the period on appeal. Accordingly, on remand, the examiner should include a discussion of the Veteran’s flare-ups throughout the period on appeal and whether an examination could be provided during a flare-up to more completely assess the current limitation of motion and other functional effects or whether an opinion can be provided with consideration of the duration of any flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Entitlement to compensation under 38 U.S.C. § 1151 for a left eye disability is remanded. Regarding the Veteran’s claim of entitlement to compensation under 38 U.S.C. § 1151 for a left eye disability, the Board found that the Veteran was competent and credible to report having double vision ever since is August 2004 cataract surgery. The Board found that this was in contrast with the factual premise of the November 2015 VA examiner’s negative opinion, which was based on that examiner’s finding that the Veteran had developed double vision 3 years after his surgery, and remanded the claim for an opinion that considered his credible lay reports. However, the November 2020 VA examiner provided a negative nexus opinion based on the same rationale, and stated “we know for sure [the double vision] did not start until after 10/6/2004.” That rationale is inadequate because it relies on a lack of evidence of treatment and does not consider the Veteran’s credible assertions that he did experience double vision since August 2004. The opinion on remand must specifically consider that. On remand, updated treatment records should be obtained. See 38 C.F.R. § 3.159. See also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers who treated the Veteran for his left knee disability or for his left eye since August 2014 not already associated with the record. After securing the necessary release, take all appropriate action to obtain these records, in include any updated VA treatment records. 2. After the completion of the above, schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) of the current severity of his service-connected left knee disability. Copies of all pertinent records must be made available to the examiner for review. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups throughout the entire period on appeal. To the extent possible, the examiner should identify any symptoms and functional impairments due to his left knee disability alone and discuss the effect of the Veteran’s left knee disability alone on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. 3. After the completion of (1), obtain an addendum opinion regarding the Veteran’s 38 U.S.C. § 1151 claim for a left eye disability from the examiner who provided the November 2020 VA opinion, (or from another appropriate provider if the November 2020 examiner is unavailable). Copies of all pertinent records must be provided for the examiner’s review of the relevant history, including especially of the treatment in question. Based on a review of the records, the examiner must answer the following: (a.) Is it at least as likely as not (50 percent or greater probability) that there was an additional disability as a result of the August 2004 cataract surgery? The examiner must consider that the Veteran had double-vision ever since the surgery; not that it first manifested several years after. (b.) If, after considering the Veteran’s competent lay statements the he experienced double vision since August 2004 but the examiner determines it was not manifest until October 2004, the examiner must comment of the significance of onset within 2 months of surgery, rather than immediately. (c.) If an additional disability is found, is it at least as likely as not (50 percent or greater probability) that the additional disability was the result of (a) carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA, (b) lack of informed consent or (c) an event that was not reasonably foreseeable. In answering this question, the examiner must comment on (i) the informed consent dated August 2, 2004, with regard to whether it offered careful explanation of the proposed diagnostic or therapeutic procedure or course of treatment, the expected benefits, reasonably foreseeable associated risks, complications, or side effects, reasonable and available alternatives, and anticipated results if nothing is done and whether it was in accordance with general medical standards for the Veteran’s eye procedure, and; (ii) that an “event not reasonably foreseeable” need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. A complete rationale must be provided for any opinion offered. If an opinion cannot be offered, the examiner must indicate why that is the case. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Eric Struening 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.