Citation Nr: 21002153 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 11-05 579A DATE: January 12, 2021 REMANDED Entitlement to a rating in excess of 20 percent for left knee degenerative joint disease is remanded. Entitlement to a rating in excess of 20 percent for lumbar spine degenerative disc disease is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1984 to July 2005. This matter comes before the Board of Veterans’ Appeals (Board) from a November 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. In July 2015, November 2016, November 2017, October 2019, and July 2020, the Board remanded the appeal for further development. Unfortunately, another remand is required. The Board, in its July 2020 remand, requested a retrospective opinion from a VA examiner, preferably an orthopedic physician. Before the examination, the Veteran contacted VA to request that the examination be performed by an orthopedist or specialist as requested in the remand order. See October 2020 Report of General Information. The Veteran’s request was not fulfilled, and instead, an examination was scheduled in October 2020 with a nurse practitioner. The Board notes that the Veteran’s back and left knee joints have been tested, where appropriate, in active and passive motion, and with opposite right knee joint findings, and therefore the requirements of 38 C.F.R. § 4.59 have been met in this appeal. However, the examining nurse practitioner was unable to provide the opinion requested by the Board addressing additional loss of motion during flare-ups without resorting to speculation, and the rationale provided for this conclusion was inadequate. Thus, remand is warranted to obtain an addendum opinion on flare-ups. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand confers upon the claimant, as a matter of law, the right to compliance with the remand directives). Any outstanding treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Then obtain a retrospective opinion, preferably from an orthopedic physician, addressing the severity of the Veteran’s lumbar spine and left knee disabilities during flare-ups over the appeal period. The entire claims file should be made available to the examiner. No additional examination is necessary, unless the examiner determines otherwise. Following a review of the claims file, to include the October 2009, June 2012, August 2015, December 2016, February 2018, May 2019 and October 2020 VA examination reports, and the May 2015 Board Hearing testimony, as well as the Veteran’s description of flare-ups therein, the examiner should: Provide an opinion describing functional impairment of the Veteran’s left knee and lumbar spine due to flare-ups since August 2009, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. If unable to provide such an opinion without resorting to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. deBruyn, 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.