Citation Nr: 21063557 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 08-25 643 DATE: October 14, 2021 REMANDED The issue of entitlement to a rating in excess of 10 percent, excluding periods of temporary total convalescence ratings pursuant to 38 C.F.R. § 4.30, prior to July 25, 2017 for service-connected limited flexion of the left knee, is remanded. Entitlement to a total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) prior to July 13, 2010 is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1970 to February 1972 and from October 1975 to August 1986. These matters come before the Board of Veterans' Appeals (Board) on appeal of a November 2007 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a video conference hearing before a Veterans Law Judge (VLJ) of the Board in May 2017. The law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. However, the VLJ who conducted the May 2017 Board hearing is no longer employed by the Board and in April 2021, the Veteran and his representative were so notified by letter and offered another hearing before a different VLJ provided a reply was received within 30 days. As there was no response to the letter, the Board proceeded with review of the appeal. Procedural History In September 2018, the Board granted an effective date of June 29, 2007 for a separate 10 percent rating for left knee limited flexion but denied the Veteran's claims for entitlement to a rating in excess of 10 percent for left knee limited flexion from May 1, 2013 to May 29, 2014, from July 1, 2014 to February 9, 2017, and from May 1,2017 to July 25, 2017, as well as claims for increased ratings for status post left medical meniscus tear and for left total knee arthroplasty. The Board remanded the Veteran's claim for entitlement to a TDIU. See Board Decision and Remand dated September 14, 2018. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In May 2019, the Court granted a Joint Motion for Partial Remand (JMPR) which sought to remand the Veteran's claim for an increased rating in excess of 10 percent for left knee limited flexion to the Board and leaving the remaining decisions undisturbed. The JMPR represents agreement between the parties (the Veteran and VA Office of General Counsel) that the Board erred by failing to ensure that VA obtained an adequate medical examination accurately reflecting the severity of his left knee limited flexion. See JMPR filed May 23, 2019. The Court granted the JMPR, remanding the Veteran's claim for an increased rating in excess of 10 percent for left knee limited flexion to the Board for readjudication. See Court Order dated May 29, 2019. In the JMPR, the parties agreed that none of the multiple VA examinations that predate the September 2018 Board decision are adequate for rating purposes. See JMPR at pg. 2. An August 2019 rating decision granting entitlement to a TDIU, effective July 13, 2010, represented a partial grant of the benefits by the RO for this claim. Therefore, the issue of entitlement to a TDIU returned to the Board for further review. See A.B. v. Brown, 6 Vet. App. 35, 38 (1993). In November 2019, the Board remanded the Veteran's claim for a rating in excess of 10 percent for left knee limited flexion for additional development, to include affording the Veteran a new VA examination to address the severity of this disability; the TDIU claim was also remanded as intertwined with the left knee claim. However, upon review of the resulting January 2020 VA examination, the Board identified deficiencies therein, and in June 2020 remanded the claims, requesting a retrospective VA opinion addressing the severity of the Veteran's left knee limited flexion for various periods dating from June 2007. Upon review of the resulting January 2021 VA opinion, the Board found that it failed to comply with its June 2021 remand directives, and in June 2021, again remanded the claims to obtain an adequate retrospective opinion. The same VA examiner issued an opinion dated July 27, 2021. The Board finds there has not been substantial compliance with its June 2021 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand); Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). VA Retrospective Opinion Although the Board regrets the additional delay in an already protracted appeal, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. In its June 2021 remand, the Board, again, requested from the VA examiner a "retrospective estimate of the amount in degrees of range of motion lost due to pain on both weightbearing and non-weightbearing positions on both active and passive motion, to include range of motion lost due to flare-ups, and on repeated use, experienced by the Veteran due to his service-connected left knee disability," for certain time-frames during the rating period on appeal. See Board Remand dated June 22, 2021 at pgs. 4-5. Further, the Board directed that if the examiner was unable to "provide the requested opinions without resorting to speculation, it must be so stated," and the examiner must provide the reasons why an opinion would require speculation, and indicate whether there was any further need for information or testing necessary to make a determination, and whether any opinion could not be rendered due to limitation of knowledge in the medical community at large and not those of the particular examiner." Id. at pg. 5. In July 2021, the VA examiner concluded that it was not possible to provide the requested retrospective estimate without resorting to mere speculation, "especially given [that] I did not perform the exam[ination]s back in 2010 through 2016. The subjective discussion and the provider documentation does [sic] not provide enough information to determine a loss of ROM without speculation." See VA Knee and Lower Leg examination dated July 27, 2021 at pg. 20. However, the examiner failed to indicate, as requested by the Board, whether there was any further need for information or testing necessary to make a determination or whether any opinion could not be rendered due to limitation of knowledge in the medical community at large and not those of the particular examiner. The Court has acknowledged that, in certain circumstances it would be inappropriate for VA to demand a conclusive opinion from an examiner who represented that he or she could not provide one, the Court clearly noted that such representation could be made only after "evaluation of the 'procurable and assembled' information." Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) (quoting 38 C.F.R. § 3.102). However, the Court held that before the Board can accept an examiner's statement that an opinion cannot be provided without resort to speculation, it must be clear that this is predicated on a lack of knowledge among the "medical community at large" and not the insufficient knowledge of the specific examiner. Id. Here, because the VA examiner made no such indication in the July 2021 examination report, the Board may not accept the examiner's statements. Id. Therefore, the Board finds the July 2021 VA opinion inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate). Accordingly, remand is necessary to obtain a medical examination addressing the current severity of the Veteran's service-connected limited flexion of the left knee, and a retrospective estimate of pain on range of motion testing and an estimation of functional loss as set forth below. See Stegall, supra. Entitlement to a TDIU prior to July 13, 2010 The claim for entitlement to a TDIU prior to July 13, 2010 is remanded as it is inextricably intertwined with the Veteran's claim for entitlement to a higher disability rating for his service-connected limited flexion of the left knee prior to July 25, 2017. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the prohibition against adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal appellate decisions). The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Then, schedule the Veteran for a VA examination from an examiner OTHER THAN the examiner who authored the July 27, 2021 VA opinion, and who is a VA physician (M.D.) preferably board certified in orthopedic medicine, as to the nature and severity of the Veteran's limited flexion of the left knee and any associated manifestations. The claims file, and a copy of this Remand, must be made available to and be reviewed by the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail and correlated to a specific diagnosis. *The examiner's review of the body of this Remand is recommended to assist in avoiding deficiencies that have rendered multiple prior examinations and opinions inadequate for rating purposes. After a complete review of the claims file, to include VA examinations dated October 2007, November 2009, June 2010, September 2010, May 2013, October 2016, March 2018, January 2020, January 2021, and July 2021 the examiner is asked to respond to the following: (a) Elicit from the Veteran all signs and symptoms of his limited flexion of the left knee and any associated manifestations. (b) Provide retrospective findings in regard to pain on range of motion testing and an estimation of functional loss: (i) For the periods from June 29, 2007 to May 29, 2014, from July 1,2014 to February 9, 2017, and from May 1, 2017 to July 25, 2017, the examiner should provide a retrospective estimate of the amount in degrees of range of motion lost due to pain on both weightbearing and non-weightbearing positions, and on both active and passive motion, to include range of motion lost due to flare-ups, and on repeated use, experienced by the Veteran due to his service-connected left knee disability. If the examiner cannot provide the requested opinions without resorting to speculation, it MUST BE SO STATED, and the examiner MUST PROVIDE the reasons why an opinion would require speculation. The examiner MUST INDICATE whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner MUST INDICATE whether any opinion could not be rendered due to limitation of knowledge in the medical community at large and not those of the particular examiner. See Jones v. Shinseki, 23 Vet. App. 382 (2010). The examiner must provide a complete rationale for all opinions provided. 3. Thereafter, ensure that the examiner has substantially responded to the questions posed by the Board, and if not, take corrective action. 4. After undertaking any additional development deemed necessary readjudicate the remanded claims, including the claim for entitlement to a TDIU prior to July 13, 2010. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, 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.