Citation Nr: 21061472 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 10-47 129A DATE: October 4, 2021 REMANDED Entitlement to a rating in excess of 10 percent prior to August 10, 2010, and in excess of 20 percent thereafter for left knee tendonitis is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from September 2002 to January 2003. This matter is on appeal from a September 2008 rating decision. This matter was previously remanded by the Board in August 2015 to attempt to obtain additional treatment records and to afford the Veteran an additional VA examination. The Agency of Original Jurisdiction (AOJ) has done so. In an April 2017 decision, the Board denied the Veteran's claim. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a Joint Motion for Partial Remand (JMPR), the parties agreed to vacate the Board's decision with regard to this issue and remand the case to the Board for additional development. The JMPR was incorporated by reference in a Court order dated in December 2017. This matter was remanded again by the Board in July 2018 to attempt to obtain additional treatment records and to afford the Veteran an additional VA medical opinion. It was remanded again by the Board in May 2020 to afford the Veteran an additional VA medical opinion. It was remanded again by the Board in December 2020 to attempt to obtain additional treatment records and to afford the Veteran an additional VA medical opinion. The Board will discuss the AOJ's compliance with its instructions below. 1. Entitlement to a rating in excess of 10 percent prior to August 10, 2010, and in excess of 20 percent thereafter for left knee tendonitis is remanded. In their JMPR, the parties before the Court agreed, in pertinent part, that "remand is warranted for the Board to obtain a new VA opinion that addresses functional impairment due to pain during flare-ups that Appellant experienced throughout the period on appeal." Despite the Board's repeated attempts, it has yet to obtain such an opinion. The most recent opinion, in February 2021, declined to provide such an opinion on the ground that it was impossible without specific findings in VA examinations during the time. The clinician also declined to consider lay evidence on the basis that "[t]he medical model states all decisions of medical professionals are to be based on credible medical evidence" and "[l]ay testimony does not constitute credible diagnosable medical evidence." The restriction of the scope of review to "credible medical evidence" is not found in the law and is not a sufficient reason for declining to provide an opinion that the parties before the Court agreed was required. Although the Board regrets the additional delay in a case that has now been pending since December 2006, because there was not substantial compliance with the remand directives, another remand is necessary to obtain an adequate medical opinion. See Stegall v. West, 11 Vet. App. 268 (1998). This is necessary in order to comply with the JMPR. In addition, the clinician found that there was no report in the claims file of knee instability, despite reports by the Veteran during treatment appointments. It is not clear if the clinician did not review those reports or if the clinician declined to consider them based on the reasoning provided above. On remand, the clinician should address these lay reports and opine as to whether there has been instability in the Veteran's left knee during the period on appeal. The Board emphasizes that it is not determining whether or not the Veteran's statements that his left knee buckled are credible at this time, as the additional development set forth in the directives below could impact that determination. The matters are REMANDED for the following action: 1. Arrange for an opinion by an appropriate clinician who has not previously examined the Veteran for the purpose of determining the severity of the Veteran's left knee tendonitis. The entire claims file and a copy of this remand must be made available to the clinician for review. A new examination is only required if deemed necessary by the clinician. Based on any examination findings and the Veteran's documented medical history and lay assertions, the clinician should identify the nature and severity of any impairment due to repeated use over time or flare-ups throughout the period on appeal, which began on December 7, 2006. The clinician should also identify the nature and severity of any history of recurrent subluxation or instability throughout the period on appeal. The clinician is advised that the parties before the Court of Appeals for Veterans Claims instructed the Board in a Joint Motion for Partial Remand that it must obtain an opinion regarding impairment during flare-ups "throughout the period on appeal." If the clinician is unable to provide such an opinion without resort to speculation, the clinician 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 clinician must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. The clinician is advised that a statement that the examinations did not take place during a flare-up or after repetitive use over time is not a sufficient rationale for inability to provide an opinion. Although an independent review of the claims file is required, the Board calls the clinician's attention to the following: a. The Veteran's report during a June 2014 VA treatment appointment of left knee buckling. b. The Veteran's report during a September 2014 VA treatment appointment of a history of bilateral knee buckling. For the purposes of this remand only, and for the limited purpose of providing a medical opinion, the clinician should assume that the Veteran's reports of knee buckling are true. If there is a medical reason to doubt their veracity, the examiner should explain why the Veteran's recollection is inconsistent with the principles of medical science and/or the evidence in this case. 2. Ensure that the directive specified in this remand has been implemented. If it has not, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). (Continued on the next page) 3. Then, readjudicate the claim. If the decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ryan Frank, 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.