Citation Nr: 21061651 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 09-37 089 DATE: October 4, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for right knee instability is remanded. Entitlement to a disability rating in excess of 20 percent for status post ACL repair/medial hemiarthroplasty with antalgic gait from November 1, 2009 is remanded. Entitlement to a disability rating in excess of 10 percent for right knee medial meniscus tear prior to November 1, 2009 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1992 to October 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. By way of background, the Board remanded the matter to the Agency of Original Jurisdiction (AOJ) for additional development in May 2013 and March 2016. A July 2017 Board decision, which denied the claims, was vacated by the United States Court of Appeals for Veterans Claims (Court) in January 2018 in conjunction with a Joint Motion for Remand (JMR). In September 2018, October 2019, and July 2020, the Board remanded the case to the AOJ for additional development. Regretfully, as explained below, a remand is warranted prior to final adjudication. 1. Disability Rating for Right Knee Instability is Remanded. 2. Disability Rating for Status Post ACL Repair/Medial Hemiarthroplasty with Antalgic Gait is Remanded. 3. Disability Rating for Right Knee Medial Meniscus Tear Consistent with the January 2018 JMR, the July 2020 Board remand instructed the AOJ to obtain a retrospective estimate opinion about the degree of limitation on range of motion during flare-ups, and with repetitive use, at the Veteran's prior VA knee examinations from 2008 forward. The Board further noted that if another examination was necessary to respond to the request, the Veteran should be afforded another examination. During the development process, the Veteran was afforded a VA examination in April 2021 without an accompanying retrospective opinion. The Veteran was provided another VA examination in May 2021 where the examiner also opined that it is not possible to estimate the range of motion during flare-ups without resorting to mere speculation for the period from 2008 to the present unless the examiner directly examined the Veteran over the past 13 years. However, this opinion did not comply with the holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017). The examiner did not address repetitive use over time. Under Sharp, an examiner is required to elicit relevant information regarding functional loss during flare-ups or after repetitive use over time, and if an opinion cannot be provided without resorting to speculation, it must be based on lack of knowledge among the medical community. Thus, an addendum VA medical opinion was obtained in June 2021 where the same examiner was asked to provide a retrospective estimate opinion regarding both flare-ups and repetitive use over time. The examiner opined that provided the same finding with respect to repeated use over time and supported the opinion by noting that the need to speculate was due to a deficiency in the state of general medical knowledge in that no one could respond given medical science and the known facts. However, the opinion did not address flare-ups, and did not cure the deficiency in the May 2021 VA retrospective opinion. In an August 2021 substantive brief, the Veteran noted that the May 2021 VA examiner was a nurse practitioner without any competence or expertise in the relevant specialty of orthopedic medicine. However, the Veteran did not provide a specific reason to question the competency of the examiner or the findings provided. Nonetheless, the Board remands this appeal for failure to substantially comply with the July 2020 remand directive in providing a retrospective opinion. See Stegall v. West, 11 Vet. App. 268 (1998). As the development, which may include a new VA examination, could impact the issue of a disability rating for right knee instability, it must be remanded as well. The matters are REMANDED for the following action: 1. Send the case to an appropriate clinician, other than the May 2021 VA examiner, to obtain a retrospective estimate opinion about the degree of limitation on range of motion during flare-ups, and with repetitive use over time, at the time of the Veteran's prior VA knee examinations from 2008 forward. The claims file should be reviewed by the examiner. A rationale should be provided for the estimates opined. The examiner must attempt to provide an estimate, if at all possible, of the additional range of motion impairment due to flare-ups and after repetitive use over time based on the evidence of record and the Veteran's statements. If this cannot be accomplished 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) and explain why that is the case. If the examiner determines another examination is necessary to respond to the above request, then schedule the Veteran for an examination to provide the requested opinions and determine the current severity of his right knee disabilities. 2. After any additional development deemed appropriate, adjudicate the Veteran's claims. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Mathew 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.