Citation Nr: 21063589 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 15-10 298 DATE: October 14, 2021 REMANDED Entitlement to a disability evaluation in excess of 10 percent for status post meniscectomy, medial meniscus of the right knee with degenerative arthritis is remanded. Entitlement to service connection for neurological condition, other than seizure disorder, to include secondary to a service-connected seizure disorder is remanded. Entitlement to service connection for fatigue, to include aa due to a service-connected seizure disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1976 until January 1980, from May 1982 to December 1989, and from January 2002 to June 2002. In July 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) regarding the issues of service connection for fatigue and a neurological condition other than seizure disorder as well as other issues that are no longer on appeal. A transcript of that hearing is of record. The Veteran withdrew his request for a hearing on the increased rating claim. This appeal was most recently remanded by the Board in September 2020 for additional development. For the reasons described below, there has not been substantial compliance with the Board's prior remand directives, and another remand is now required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a disability evaluation in excess of 10 percent for status post meniscectomy, medial meniscus of the right knee with degenerative arthritis is remanded. The claim must be remanded again because the January 2020 VA opinion is inadequate because it does not include all necessary findings related to range of motion or consider the effect of flare-ups on functional loss. See Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). Entitlement to service connection for neurological condition, other than seizure disorder, to include secondary to a service-connected seizure disorder is remanded. Entitlement to service connection for fatigue, to include aa due to a service-connected seizure disorder is remanded. These claims must be remanded again because it appears they were returned to the Board prematurely. The directed development was not completed and the agency of original jurisdiction (AOJ) did not readjudicate the claims. The October 2020 supplemental statement of the case (SSOC) did not include these issues. See 38 C.F.R. § 19.31 (c). On remand, updated VA treatment records must be obtained. Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from August 2020 to the present. 2. After completion of the above, obtain an addendum opinion (with examination if deemed necessary by provider) from an appropriate clinician on the nature and likely etiology of any diagnosed (1) neurological disability (other than the already service-connected seizure disorder) and (2) disability characterized by fatigue. Copies of all pertinent records must be made available to the examiner for review. Based on a review of the record, and examination if deemed necessary, the examiner should answer the following: (a) Does the Veteran have a neurological disability (other than the already service-connected seizure disorder)? (b) If the answer to (a) is yes, is it at least as likely as not that the separately diagnosed neurological disorder is (i) caused or (ii) aggravated by (any increase in disability) the service-connected seizure disorder or medication prescribed for a service-connected disability? In answering this question, the examiner must specifically address October 2019 VA treatment records regarding a seizure disorder. (c) Does the Veteran have a diagnosed disability characterized by fatigue? (d) If the answer to (c) is yes, is it at least as likely as not that the diagnosed disability characterized by fatigue is (i) caused or (ii) aggravated by (any increase in disability) the service-connected seizure disorder or medication prescribed for a service-connected disability? In answering this question, the examiner must specifically address October 2019 VA treatment records regarding a seizure disorder A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge; the examiner's own expertise, or; whether additional facts are required and note what, if any, additional evidence would permit such an opinion to be made. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right knee disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must complete the corresponding VA disability benefits questionnaire (DBQ), provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement 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). Additionally, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement 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). 4. Confirm that the VA medical opinion provided comports with this remand, specifically that the standard for the secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, get an addendum. Then readjudicate all claims on appeal. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Collins, Associate 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.