Citation Nr: 21003552 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 08-39 822 DATE: January 21, 2021 REMANDED Entitlement to a rating in excess of 10 percent for degenerative joint disease of the left knee is remanded. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the right knee, prior to April 14, 2016, is remanded. Entitlement to a rating in excess of 30 percent for degenerative joint disease of the right knee, from April 14, 2016 and continuing thereafter, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from January 14, 1998 to March 2, 1998. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a January 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. These matters have a long and complicated procedural history. The Veteran’s claims have been before the Board on six previous occasions: September 22, 2010; March 29, 2012; March 18, 2014; March 10, 2015; June 27, 2017; and April 20, 2020. In addition, the matters were appealed to the Court of Appeals for Veterans Claims (Court) and resulted in Joint Motions for Remand (JMR’s) on May 8, 2013 and October 29, 2014. The most recent April 20, 2020 Board decision yielded final determinations on certain disabilities pertaining to the knees, see BVA Decision (Apr. 20, 2020); 38 C.F.R. § 4.71a, Diagnostic Codes 5257, 5258, but remanded the following remaining claims for increased ratings for the bilateral knees: degenerative joint disease of the left knee (Diagnostic Code 5260), 10 percent disabling since March 3, 1998; and degenerative joint disease of the right knee, 10 percent disabling from March 3, 1998 until prior to April 14, 2016 (Diagnostic Code 5003-5260), and then 30 percent disabling thereafter (Diagnostic Code 5003-5261). Because higher ratings are available throughout the period on appeal and the Veteran is presumed to seek the maximum available benefits, this issue remains on appeal and has been recharacterized as shown on the title page. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran was most recently issued a Supplemental Statement of the Case (SSOC), as to portions of his claim for increased ratings for his service-connected bilateral knees that remain in appellate status, in October 2020. Meanwhile, and also in October 2020, the Veteran was issued a rating decision reflecting the Board’s respective final adjudications from April 2020. The Board accordingly reasserts jurisdiction. 1. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the left knee is remanded. 2. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the right knee, prior to April 14, 2016, is remanded. 3. Entitlement to a rating in excess of 30 percent for degenerative joint disease of the right knee, from April 14, 2016 and continuing thereafter, is remanded. In the section of the April 2020 BVA decision that remanded the portion of the Veteran’s claims that are currently once more on appeal, the Agency of Original Jurisdiction (AOJ) was instructed to obtain a new VA examination to adequately ascertain the current severity of the Veteran’s bilateral knee disabilities, and also to provide a retrospective opinion as to the severity of same since April 2007. See BVA Decision (Apr. 20, 2020), at Pages 11-17. The Veteran’s claims file was forwarded to an examiner who provided a retrospective opinion on his bilateral knees on September 23, 2020. See VA Exam (Sept. 23, 2020). The examiner appears to have indicated that “The right does not appear to be significantly worsened since the April 2007 time frame.” See id. at Additional Question No. 8. The Board cannot reconcile the above conclusion with the fact that by virtue of an April 14, 2016 examination, the Veteran’s right knee rating was switched to Diagnostic Code 5261, 38 C.F.R. § 4.71a, so that it could be afforded a 30 percent rating instead of an initial 10 percent rating. The Board construes the examiner’s finding that “the right does not appear to be significantly worsened since the April 2007 time frame” as either bare and conclusory, see Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion must support its conclusion with an analysis the Board can consider and weight against contrary opinion”), or else as predicated upon an inaccurate factual premise, see Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). Regardless, the Board concludes that the retrospective opinion is not adequate for VA purposes, see Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is inadequate). Furthermore, the Veteran is entitled to substantial compliance with all previous remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As a result, the Board is precluded from issuing a final determination as to the Veteran’s claims, and is instead required to remand once more for an adequate retrospective opinion. As current findings may be inextricably intertwined with a complete history of the progression of the Veteran’s bilateral knee disorder, the Board also remands for same. The Board sincerely regrets the inevitable delay in ordering another remand. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding relevant private treatment records. 3. Once the aforementioned evidentiary development is complete, schedule the Veteran for a VA examination to address the nature and severity of his bilateral knee disabilities. A complete copy of the claims file must be made available to the examiner, including a copy of this remand. The examiner should take a thorough history of observable symptomatology since April 2007 from the Veteran. The examiner must consider the Veteran’s lay statements regarding observable symptomatology associated with his bilateral knee disability. After a thorough review of the medical and lay evidence of record is complete, the examiner should discuss the following: (a.) Describe the current nature and severity of the Veteran’s bilateral knee disabilities, including any and all diagnoses pertaining to his knees. Indicate whether any new diagnosis is a progression of his service-connected disabilities. (b.) Assess both active and passive range of motion, as well as range of motion on weight-bearing and non-weight bearing. If possible, estimate range of motion after repetitive use and during flare ups based upon observations in the examination and the Veteran’s lay reports of symptoms. Specifically note whether, and at what point during range of motion, the Veteran experienced any limitation of motion that was specifically attributable to pain. (c.) If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must consider the Veteran’s competent lay reports of observable symptomatology in this assessment. (d.) Discuss the functional limitation, if any, of the Veteran’s bilateral knee disability with consideration of the Veteran’s lay statements regarding his experienced limitations due to symptomatology. (e.) If possible, provide a retrospective opinion regarding limitations due to repetitive use and flare ups since April 2007 based on the Veteran’s lay statements of experienced symptomatology. Include discussion of whether, and at what point during range of motion, the Veteran experienced any limitation of motion that was specifically attributable to pain during this period. The examiner is specifically asked to address the relevance of a rating increase on the right knee from 10 percent to 30 percent, effective April 14, 2016. A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael B. Engle, 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.