Citation Nr: 21063441 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 10-44 826 DATE: October 14, 2021 REMANDED Entitlement to an evaluation in excess of 10 percent for service-connected degenerative arthritis of the right knee, status post arthroscopic knee surgeries (hereinafter, service-connected right knee disability) prior to May 26, 2010, and from September 1, 2010, to September 19, 2010, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1997 to June 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed disagreement with this determination, and the present appeal ensued. In May 2011, the Veteran presented oral testimony in support of his appeal to a Decision Review Officer (DRO) sitting at the RO. A transcript of the May 2011 DRO hearing is associated with the file. In December 2015, the Veteran presented further oral testimony in support of his appeal at a Board hearing conducted by a Veterans Law Judge (VLJ) via videoconferencing equipment. A transcript of the December 2015 Board hearing has been associated with the record. In April 2016, the Board, among other actions, denied the Veteran's appeal seeking an increased rating for his service-connected right knee disability prior to January 2011. The Veteran appealed the Board's April 2016 decision to the United States Court of Appeals for Veterans Claims (Court). In January 2017, while the matter was pending before the Court, a private attorney representing the Veteran and a member VA's Office of General Counsel entered into a Joint Motion for Partial Remand (JMPR), vacating that portion of the Board's April 2016 decision that denied an increased rating for his service-connected right knee disability, and remanding that matter to the Board for further proceedings consistent with the JMPR. The January 2017 JMPR was effectuated by the Court in a February 2017 Order, and the matter as returned to the Board. The Veteran's appeal was subsequently remanded by the Board for actions congruent with the parties' agreements in the Court-endorsed JMPR in August 2017, November 2018, and April 2020. The Board's prior remand directives and the subsequent actions of the AOJ will be discussed below. In a May 2021 letter, the Board notified the Veteran that the VLJ who conducted the December 2015 hearing was no longer with the Board, and he would be afforded the opportunity to appear at another hearing if so desired. The letter explicitly stated that if the Veteran did not reply to the letter within 30 days, the Board would assume that he did not desire to participate in another hearing. The Veteran did not respond; therefore, the Board will consider the appeal based on the evidence of record. The Veteran's appeal was, again, remanded by the Board in August 2021 to ensure that VA fulfilled its duty to assist him in substantiating his appeal. The Board's prior remand directives and the subsequent actions of the AOJ will be discussed below. The Veteran's appeal has been returned to the Board for further appellate consideration. Characterization of the issue on appeal The Veteran's initial claim, filed on February 2, 2010, sought a compensable evaluation for his service-connected right knee disability. After the AOJ denied this claim and the Veteran initiated an appeal, he filed a separate claim seeking a temporary total evaluation pursuant to 38 C.F.R. § 4.30 following right knee surgery requiring convalescence. This claim was also denied by the AOJ, and the Veteran initiated a separate appeal that was, ultimately, merged with his appeal seeking a compensable evaluation for his service-connected right knee disability. In rating decisions and DRO decisions issued during the extended pendency of the Veteran's appeal, the AOJ has granted, partially or in full, appeals seeking an increased evaluation for the Veteran's right knee disability after January 1, 2011, and periods of temporary total evaluations pursuant to 38 C.F.R. § 4.30 following right knee surgery requiring convalescence. In view of these allowances and the Veteran's July 2011 statement of satisfaction with his right knee evaluation from January 1, 2011, to the present, the issue on appeal has been truncated into to two brief periods: (1) prior to May 26, 2010, and (2) from September 1, 2010, to September 19, 2010. Additional entitlement may be available if the evidence of record reflects increased right knee symptoms in the one-year period prior to the AOJ's receipt of the Veteran's February 2010 claim. Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). 1. Entitlement to an evaluation in excess of 10 percent for a service-connected right knee disability prior to May 26, 2010, and from September 1, 2010, to September 19, 2010, is remanded. As recounted in detail in the Introduction, the issue on appeal involves the propriety of the assignment of a 10 percent evaluation for the Veteran's service-connected right knee disability during two distinct periods in 2010. It appears that the currently assigned 10 percent evaluation for this disability during the periods for consideration is based on evidence showing that the Veteran demonstrated painful limited right knee motion to a noncompensable degree during the same. As such, the Veteran's appeal may be availed if the most probative evidence during these periods shows his service-connected right knee disability was manifested by (1) limited flexion to a compensable degree, (2) limited extension to a compensable degree, (3) recurrent subluxation, (4) lateral instability, (5) genu recurvatum, (6) ankylosis, (7) impairment of the tibia and fibula, (8) symptomatic removal of semilunar cartilage, and/or (9) dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. As an aside, the Board observes that the Veteran did not undergo knee replacement surgery, partial or total, prior to September 20, 2010, and thus, Diagnostic Code 5055 is not for consideration in this matter. In the January 2017 Court-endorsed JMPR, the parties agreed that the evidence of record at that time was ambiguous concerning whether the Veteran's right knee disability was manifested by symptomatic removal of semilunar cartilage and/or dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. Further, in the August 2021 remand, the Board observed that the medical evidence dated during the two periods for consideration was inadequate because the VA examiner's, while noting that the Veteran experienced flare-ups of right knee symptoms, did not quantify such as is necessary under Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017). See also Cagliero v. Wilkie, No. 19-6895 (November 30, 2020) (providing that a Sharp-compliant examination (1) describes the increased symptoms during a flare-up and (2) describes the increased limitation of the affected joint (in degrees) during a flare-up). In view of the above inadequacies, the Board's August 2021 remand directed the AOJ to obtain retrospective medical opinions regarding (1) whether the Veteran's service-connected right knee disability was manifested by symptomatic removal of semilunar cartilage and/or dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint and (2) the range of motion of the Veteran's right knee (in degrees) during a flare up symptoms. While the AOJ obtained retrospective medical opinions in August 2021, the VA physician did not provide estimated range of motion findings of the Veteran's right knee during a flare-up of symptoms for the period for consideration. As shown above, the Board's prior remand directives have not been substantially completed, which frustrates the Board's ability to readjudicate the Veteran's appeal. Specifically, the March 2010 VA examiner noted that the Veteran experienced flare-ups of right knee symptoms, such were not quantified at the time, and the VA physician who was requested to retrospectively estimate this critical information in August 2021 failed to do so. Accordingly, another remand is necessary to ensure substantial compliance with the Board's prior remand directives. The matters are REMANDED for the following actions: 1. The AOJ must transfer the Veteran's complete electronic file to a VA physician for review and request that he/she provide retrospective medical opinions regarding the range of motion of the Veteran's right knee during flare-ups of symptoms from February 2, 2009, to May 26, 2010, and from September 1, 2010, to September 19, 2010. *The Board observes the inherent difficulties with providing retrospective findings; however, such is necessary under precedential Court holdings. As such, the VA clinician is encouraged to discern these retrospective findings based on medical and lay evidence within the file contemporaneous with the appeal periods for consideration (February 2, 2009, to May 26, 2010, and from September 1, 2010, to September 19, 2010). *If the VA clinician feels that the Veteran must be examined and/or interviewed to accurately provide the requested information, such must be scheduled, and the Veteran must then be provided adequate notice of the time and place to report. If the clinician cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the clinician shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 2. Thereafter, the AOJ must readjudicate the Veteran's appealed issue in light of the totality of evidence of record. If the benefit sought is not granted to the fullest extent, the AOJ must provide the Veteran and his representative with a copy of the readjudication and afford them an appropriate period to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott W. Dale, 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.