Citation Nr: 21004573 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 10-27 037 DATE: January 27, 2021 REMANDED The issues of entitlement to (1) an increased rating for limitation of right knee extension, currently rated as 10 percent disabling for the period from February 23, 2011, to October 1, 2013, and as noncompensable (zero percent disabling) beginning October 1, 2013; (2) an increased rating for manifestations of a left knee disability, other than instability, currently rated as 10 percent disabling for the period prior to September 4, 2020, and 20 percent disabling thereafter; and (3) referral for extraschedular consideration of entitlement to increased ratings for the left and right knee are remanded. REASONS FOR REMAND The Veteran served on active duty from September 1984 to November 1987. This matter is before the Board following his appeal of a September 2009 rating decision that granted separate 10 percent disability ratings for each knee. During the course of the appeal, a December 2013 rating decision did not assign higher ratings for the bilateral knee disabilities that were already in effect, but granted service connection for additional knee disabilities in the forms of limitation of right knee extension due to arthritis, rated 0 percent disabling; right knee instability, rated 10 percent disabling; and left knee instability, rated 20 percent disability. This appeal came before the Board in June 2015, at which time it was remanded for additional development. The case returned to the Board in December 2015. At that time, the Board granted 10 percent ratings for right knee limitation of extension for the period from February 23, 2011, to October 1, 2013; right knee instability for the period from July 29, 2008 to December 1, 2009; and, right knee scarring for the period from September 15, 2009 to October 1, 2013, and otherwise denied increased ratings for left and right knee disabilities (to include right knee limitation of flexion). The Veteran timely appealed the denials of higher ratings for limitation of right knee extension and left knee arthritis, and referral for extraschedular consideration to the United States Court of Appeals for Veterans Claims (Court). The Court then issued an April 2017 Memorandum decision, which vacated the Board’s December 2015 decision to the extent that it denied those claims and remanded them to the Board for additional development. The Board then remanded this matter again in September 2017 and May 2020 for compliance with the April 2017 Memorandum decision. In a September 2020 rating decision, a higher 20 percent rating was awarded for the left knee disability, effective September 4, 2020. A higher 20 percent rating was also assigned for the right knee, effective September 4, 2020, based on limitation of flexion, which is not part of the current right knee appeal. Unfortunately, the Board finds that an additional remand is once again necessary to ensure compliance with prior remand directives. Specifically, in May 2020, the Board requested, in part, that an examiner provide a retrospective assessment of the likely ranges of motion for the left and right knees in passive motion, weight-bearing, and non-weight-bearing, during prior examinations given his conclusion that passive range of motion and range of motion in weight-bearing should have been performed during prior examinations. While the Veteran was afforded a VA examination in September 2020, the examiner did not provide any such retrospective assessments, or explain why such would not be feasible. As such, an addendum was requested from the examiner in September 2020. In response, the examiner indicated that a retrospective assessment was not possible without the Veteran being physically present; he did not explain why such assessments were not done when the Veteran was present for the examination just weeks earlier. Given the foregoing, the Board finds that remand of the bilateral knee increased rating claims is necessary in order to obtain retrospective range of motion assessments or for an explanation as to why such assessments are not feasible. See Stegall v. West, 11 Vet. App. 268 (1998). As the issue of entitlement to referral for extraschedular consideration of increased ratings for the knees, the Board finds that the issue must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (stating that issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). The matters are REMANDED for the following action: Forward a copy of this remand to the September 2020 VA examiner or, if unavailable, to another qualified examiner for the purpose of obtaining an opinion regarding the adequacy of range of motion (ROM) testing of the left and right knees conducted on prior physical examinations. If a physical examination is deemed necessary to answer the following questions, one should be scheduled. Specifically, the examiner should address the following: (a) On examinations in September 2008, September 2009, February 2011, October 2013, and November 2017 ROM was not tested on passive ROM and/or in weight-bearing/nonweight-bearing conditions. Please state whether range of motion testing on passive ROM and in in weight-bearing/nonweight-bearing conditions was medically required to adequately assess the appellant’s pain on motion. Please explain why or why not. (b) If, and only if, the examiner determines that all medically required testing was not conducted, request that an additional physical examination be scheduled in order to conduct ROM testing in active motion, passive motion, and in weight-bearing, and non-weight-bearing conditions. In this event, the examiner should also attempt to provide retrospective assessments of what the likely ranges of motion would have measured on each prior examination, had ROM been tested in (1) passive motion, (2) in weight-bearing, and (3) in non-weight-bearing. If this assessment is not feasible, please clearly explain why that is so. (c) A rationale for all opinions expressed should be set forth. If the examiner cannot provide an opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). S. C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Fagan 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.