Citation Nr: 21003128 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 14-34 377A DATE: January 19, 2021 REMANDED Entitlement to a rating in excess of 10 percent for a right knee disability prior to October 7, 2009, and a rating in excess of 30 percent as of December 1, 2010, is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from March to July 1964. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2018, the Veteran testified at a hearing before the undersigned. In May 2018, July 2018, and August 2020, the Board remanded this matter for further development. The case has been returned to the Board at this time for further appellate review. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 1. Entitlement to a rating in excess of 10 percent for a right knee disability prior to October 7, 2009, and a rating in excess of 30 percent as of December 1, 2010, is remanded. In August 2020, this matter was remanded to obtain a retrospective opinion so that the Board can make an informed decision on the Veteran’s appeal of the initial rating assigned for his right knee disability. Specifically, it was determined that there is no sufficient VA examination reflecting the Veteran’s functional limitations prior to his October 2009 partial knee arthroplasty. In this regard, the VA examiner was directed to address the severity of the Veteran’s right knee disability from June 1, 2004, to October 6, 2009. In addition, the VA examiner was advised that, if any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. A retrospective opinion was obtained in November 2020. The VA examiner stated that they could not add any measurements to the range of motion for the Veteran during the time period in question and that the available knee examinations represent the most accurate measurement of the Veteran’s right knee condition due to the limitations of a reasonable medical exam for range of motion and because there is no further information noted in the available medical records regarding range of motion, pain, weakened movement, excess fatigability, instability of station and incoordination. The VA examiner also noted that it is not medically possible to determine to range of motion in both active and passive motion, in weight-bearing and non-weight-bearing, pain, weakened movement, excess fatigability, instability of station and incoordination present during the time period in question. Finally, the examiner noted that range of motion can vary from exam to exam based on flare ups, repeated use, and other factors that preclude a retrospective estimate for range of motion. The Board finds the November 2020 retrospective opinion to be inadequate. Although the opinion is not completely clear, it appears as though the VA examiner is essentially stating that they cannot provide an opinion without resorting to speculation. However, the VA examiner did not provide a detailed medical explanation as to why this is so, as was directed. Accordingly, remand is warranted for a new VA opinion. 2. Entitlement to TDIU is remanded. The issue of entitlement to TDIU is inextricably intertwined with the claim of entitlement to an increased rating for the Veteran’s right knee disability, and therefore, is remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The matters are REMANDED for the following action: Obtain a retrospective opinion regarding the Veteran’s increased rating claim for his service-connected right knee disability, preferably with an examiner who has not previously opined as to the Veteran’s claim. If feasible, and if deemed necessary by the clinician selected to provide the opinion, schedule a telehealth appointment to elicit a history from the Veteran regarding his right knee symptoms. Specifically, the clinician must address the severity of the Veteran’s right knee disability from June 1, 2004, to October 6, 2009 (the period prior to his knee surgery). The Board is cognizant of the limited medical records pertaining to the right knee for this time period. This is why the Board needs expert assistance from a medical professional in estimating the degree of impairment in the Veteran’s right knee for this time period. Based on the Veteran’s lay statements and the other evidence of record, the selected examiner should provide an estimate as to range of motion in the right knee from June 1, 2004 to October 6, 2009. The examiner should provide estimated measurements in both active and passive motion, in weight-bearing and non-weight-bearing. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present during the time period from June 1, 2004 to October 6, 2009. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time for the time period from June 2004 to October 2009 (prior to the surgery). If the examiner cannot use the Veteran’s lay statements and the other evidence of record to provide an estimate of the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Elias, 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.