Citation Nr: 21065458 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 12-24 052 DATE: October 26, 2021 REMANDED Entitlement to a rating in excess of 10 percent for degenerative arthritis of the right knee is remanded. Entitlement to a rating in excess of 20 percent for degenerative arthritis of the left knee is remanded. Entitlement to a rating in excess of 20 percent prior to January 8, 2016, for low back degenerative arthritis L4, L5, S1, is remanded. Entitlement to a rating in excess of 40 percent from January 8, 2016, for low back degenerative arthritis L4, L5, S1, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1983 to November 1986. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. In October 2020, the Board last remanded this matter to the RO for further development. As an initial matter, in August 2021, the Board notified the Veteran that VA could no longer recognize his appointed representative, the Military Order of the Purple Heart (MOPH), as his representative. See August 2021 letter. The Veteran was further informed of his rights to representation and was notified that if VA had not heard from him or a new representative within 30 days of the date of the letter, it would assume that he wished to represent himself and would continue review of his appeal. See id. To date, the claims file does not include correspondence indicating the Veteran would like a different/new representative for his appeal. As such, at this time, the Veteran is considered unrepresented as to the issues in this appeal. Entitlement to a rating in excess of 10 percent for degenerative arthritis of the right knee; entitlement to a rating in excess of 20 percent for degenerative arthritis of the left knee; and entitlement to a rating in excess of 20 percent prior to January 8, 2018, and in excess of 40 percent thereafter, for low back degenerative arthritis L4, L5, S1 Although the Board acknowledges and sincerely regrets the continued delay and inconvenience to the Veteran, a remand is again warranted for VA examinations and opinions that substantially comply with the prior Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In this regard, the October 2020 Board decision remanded the Veteran's claims to obtain VA examinations with full range of motion testing and retrospective opinions describing the severity of the Veteran's disabilities during the appeal period, including addressing prior range of motion measurements and providing estimated range of motion measurements if feasible. Following that Remand, VA obtained additional back and knee examinations in February 2021. For all the Veteran's knee and back disabilities, the February 2021 VA examiner opined that she was unable to provide a retrospective opinion as to the specific range of motion findings because these facts cannot be determined from the Veteran's history, examination findings, medical treatment records and/or lay testimony and because of limitation of knowledge in the medical community at large as to how range of motion measurements can be ascertained during flare ups or during repeated use. The VA examiner did not otherwise discuss the severity of the Veteran's disabilities over the course of the appeal period, as requested to do so, or even list the range of motion findings recorded in the prior VA examinations of record. The VA examiner also did not provide all range of motion measurements on examination of the knee and back as requested. Moreover, regarding the Veteran's knee disabilities, the VA examiner indicated that the Veteran did not have prior knee surgeries and had not ever been diagnosed with a meniscus (semilunar cartilage) condition despite evidence in the claims file to the contrary. See e.g., September 2020 VA treatment record (reflecting the Veteran had a history of three bilateral scopes for meniscal tears); July 2019 VA treatment record (reflecting left knee medial meniscus tear). In light of these deficiencies with the VA examinations and retrospective opinions, the Board finds that it cannot fully and accurately assess the severity of the Veteran's disabilities until the RO obtains additional VA examinations and opinions. In addition, the available medical evidence of record reflects that the Veteran has been awaiting a total knee replacement scheduled in 2021. See September 2020 VA treatment record. Therefore, on remand, the AOJ should attempt to obtain any outstanding medical records relating to additional knee treatment/total knee replacement surgery. Finally, the Board notes that the Veteran is in receipt of separate ratings for his bilateral lower extremity sciatica as associated with his service-connected low back disability. However, as the March 2014 VA peripheral nerves examination reflects that the Veteran had bilateral mild incomplete paralysis of all listed lower extremity nerve groups, it is unclear whether the Veteran's low back disability manifests in additional/more severe symptomatology. Therefore, on remand, the AOJ should obtain another peripheral nerves examination. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the Veteran's claims file. The last VA treatment of record is dated October 2020. 2. Provide the Veteran with another opportunity to identify any outstanding private treatment records relevant to his claims, to include any treatment related to total knee replacement surgery. Additionally, provide the Veteran with another opportunity to fill out a complete and signed VA 21-4142 Authorization to Disclose Information to VA for his reported Kaiser Permanente treatment. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. 3. Then, schedule the Veteran for an updated VA examination, from an examiner other than the February 2021 VA examiner, to determine the severity of his service-connected right and left knee disabilities. The claims file, including a copy of this Remand, must be made available to and be reviewed by the examiner. All indicated testing should be accomplished and all symptomatology associated with the disabilities should be identified. The examiner should respond to the following: (a) The examiner MUST TEST the Veteran's range of motion on active and passive motion, on weight-bearing and non-weight-bearing, if possible, and record the range of motion measurements. (b) If there is evidence of pain on motion, the examiner must indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination results in any loss of range of motion. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. (c) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use due to the Veteran's disability. The examiner should state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups, if any, he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his left and right knee and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion ESTIMATING any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. (d) If it is not feasible to determine the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why that is so. The examiner is further advised that the inability to provide an opinion without resorting to speculation must be based on the limitation of knowledge in the medical community at large and not a limitation -whether based on lack of expertise, insufficient information, or unprocured testing -of the individual examiner. (e) The examiner is also asked to DISCUSS whether the Veteran has a meniscal condition and/or residuals of a meniscal condition in both knees. The examiner should consider the evidence of record indicating the Veteran has and/or had a meniscal condition in both the right and left knee. See e.g., September 2020 VA treatment record (reflecting the Veteran had a history of three bilateral scopes for meniscal tears); July 2019 VA treatment record (reflecting left knee medial meniscus tear). (f) The examiner is also asked to provide a RETROSPECTIVE opinion concerning the functional loss and severity of the Veteran's left and right knees from January 2009 (i.e., from one year prior to the Veteran's increased rating claim). The examiner should DESCRIBE the severity of the knees throughout the appeal period. Additionally, to the extent possible, the examiner should provide a retrospective opinion addressing prior range of motion of the knees, including an ESTIMATED degree of additional range of motion loss due to repeated use over time and flare-ups, if feasible. In making this determination, the VA examiner should consider the prior VA examination reports. See, e.g., February 2010, August 2011, February 2014, January 2016, September 2019, and February 2021 VA examination reports. As the opinion the examiner must provide is a retrospective opinion, the examiner will necessarily be unable to observe the Veteran during a flare-up or after repeated use. Nonetheless, to the extent possible, the examiner should still estimate any additional functional impairment based on the evidence of record and the Veteran's lay descriptions of flare severity, frequency, duration, and/or functional loss manifestations. The examiner should consider the lay descriptions in formulating the opinion. If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should clearly explain so in the report and must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. Any opinions expressed by the VA examiner should be accompanied by rationale. 4. Then, schedule the Veteran for an updated VA examination, from an examiner other than the February 2021 VA examiner, to determine the severity of his service-connected low back disability. The claims file, including a copy of this Remand, must be made available to and be reviewed by the examiner. All indicated testing should be accomplished and all symptomatology associated with the disabilities should be identified. The examiner should respond to the following: The examiner should consider that the Veteran is service connected for bilateral lower extremity sciatica as associated with his low back disability and indicate if the Veteran exhibits any other signs or symptoms of radiculopathy. (a) The examiner MUST TEST the Veteran's range of motion on active and passive motion, on weight-bearing and non-weight-bearing, if possible, and record the range of motion measurements. (b) If there is evidence of pain on motion, the examiner must indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination results in any loss of range of motion. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. (c) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use due to the Veteran's disability. The examiner should state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups, if any, he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his low back disability and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion ESTIMATING any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. (d) If it is not feasible to determine the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why that is so. The examiner is further advised that the inability to provide an opinion without resorting to speculation must be based on the limitation of knowledge in the medical community at large and not a limitation -whether based on lack of expertise, insufficient information, or unprocured testing -of the individual examiner. (e) The examiner is also asked to provide a RETROSPECTIVE opinion concerning the functional loss and severity of the Veteran's low back disability since July 2007 (i.e., from one year prior to the Veteran's increased rating claim). The examiner should DESCRIBE the severity of the low back throughout the appeal period. Additionally, to the extent possible, the examiner should provide a retrospective opinion addressing prior range of motion of the low back, including an ESTIMATED degree of additional range of motion loss due to repeated use over time and flare-ups, if feasible. In making this determination, the VA examiner should consider the prior VA examination reports. See, e.g., December 2009, June 2011 (indicating that during flare-ups, the Veteran has an additional one third limitation in range of motion), February 2014, January 2016, September 2019, and February 2021 VA examination reports. As the opinion the examiner must provide is a retrospective opinion, the examiner will necessarily be unable to observe the Veteran during a flare-up or after repeated use. Nonetheless, to the extent possible, the examiner should still estimate any additional functional impairment based on the evidence of record and the Veteran's lay descriptions of flare severity, frequency, duration, and/or functional loss manifestations. The examiner should consider the lay descriptions in formulating the opinion. If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should clearly explain so in the report and must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. Any opinions expressed by the VA examiner should be accompanied by rationale. 5. Then, schedule the Veteran for an updated peripheral nerves VA examination. The claims file, including a copy of this Remand, must be made available to and be reviewed by the examiner. All indicated testing should be accomplished and all symptomatology associated with the disabilities should be identified. The examiner should consider that the Veteran is service connected for bilateral lower extremity sciatica as associated with his low back disability and indicate if the Veteran exhibits any other signs or symptoms of radiculopathy, to include in other nerve groups, as associated with his service-connected low back disability. The AOJ should review the claims file and ensure that the foregoing development actions have been conducted and completed, to include reviewing the examination reports to ensure that they are in compliance with this remand. If the reports are deficient in any manner, the AOJ should implement corrective procedures. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Purcell, 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.