Citation Nr: 21065602 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-43 734 DATE: October 26, 2021 REMANDED The issue of an evaluation in excess of 10 percent for Osgood Schlatter's disease with osteoarthritis of the right knee, manifested by limited flexion, is remanded. The issue of a compensable evaluation for Osgood Schlatter's disease with osteoarthritis of the right knee, manifested by limited extension, currently evaluated as 0 percent disabling, is remanded. The issue of an evaluation in excess of 10 percent for Osgood Schlatter's disease with osteoarthritis of the left knee, manifested by limited flexion, is remanded. REASONS FOR REMAND The Veteran, who is the appellant in this case, served on active duty in the Marine Corps from July 1977 to January 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision of a Department of Veterans' Affairs (VA) Regional Office, the agency of original jurisdiction (AOJ). In March 2019, the Board remanded the claims for further development, to include affording the Veteran new knee examinations and to obtain opinions regarding the likely etiology of the Veteran's bilateral hamstring weakness, right ankle weakness, and bilateral knee "bucking." See Board Remand dated March 18, 2019. The Board finds there has not been substantial compliance with its March 2019 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). Thus, while the Board regrets the additional delay, a remand is again 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. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2020). Once VA undertakes the effort to provide an examination or medical opinion, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the October 2019 VA examination and medical opinions reflect a number of critical deficiencies. First, the VA examiner did not specify diagnoses in the examination report and stated that the Veteran's tricompartmental arthritis was unrelated to his Osgood Schlatter's disease, suggesting that the examiner did not understand which of the Veteran's several service-connected knee disabilities were to be evaluated. This is suggestive that the examiner's review of the claims file was cursory at best. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from its being factually accurate, fully articulated, and having a sound reasoning for the conclusion). Second, the examiner attributed a significant degree of the Veteran's knee impairment and his use of a cane to assist with ambulation to residuals of his stroke, without explaining the basis for such finding. Id. Third, the examiner opined that the Veteran does not have bilateral hamstring weakness on the basis of findings reflected in the examination report, which address right leg weakness only. Id. Fourth, the examiner attributed the Veteran's right ankle weakness to residuals of the Veteran's stroke, concluding that the "bulk of the peer reviewed literature" makes no medical correlation between ankle strength and Osgood Schlatter's disease or its residuals. This statement by the examiner suggests that at least some of the literature reviewed may support a medical correlation between ankle strength and Osgood Schlatter's disease, yet the examiner provided no comparison in this regard or explanation for assigning greater weight to literature that does not support a correlation. Id. Fifth, the examiner opined that the Veteran's Osgood Schlatter's disease "is not active," based in part on "x-ray evidence." However, in making this determination, the examiner relied on x-rays obtained in 2014, which predate the Veteran's claim for increased ratings. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based upon an inaccurate factual premise has no probative value). For these reasons, the Board finds the October 2021 VA examination and opinions inadequate. See Barr, supra. Accordingly, remand to obtain a medical examination and opinions addressing the current severity of the aforementioned bilateral knee disabilities and related symptoms is necessary to ensure that the Board's evaluation of the Veteran's claims is a fully informed one. See Stegall, supra. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Provide the Veteran and his representative with complete copies of the October 1, 2019 VA Knee and Leg Conditions compensation and pension examination report and the October 1, 2019 VA medical opinion. 3. Then, schedule the Veteran for a VA examination by an appropriately qualified VA examiner OTHER THAN the examiner who conducted the October 1, 2019 examination as to the current severity of the Veteran's service-connected Osgood Schlatter's disease with osteoarthritis of the left knee, manifested by limited flexion, Osgood Schlatter's disease with osteoarthritis of the right knee, manifested by limited flexion, and Osgood Schlatter's disease with osteoarthritis of the right knee, manifested by limited extension. 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 the Board has identified in the October 1, 2019 VA examination and opinions. After a complete review of the claims file, the examiner is asked to respond to the following: (a) After obtaining the above records, schedule the Veteran for an examination of the current severity of his Osgood Schlatter's disease with osteoarthritis of the left knee, manifested by limited flexion, Osgood Schlatter's disease with osteoarthritis of the right knee, manifested by limited flexion, and Osgood Schlatter's disease with osteoarthritis of the right knee, manifested by limited extension. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to Osgood Schlatter's disease with osteoarthritis of the left knee, manifested by limited flexion, Osgood Schlatter's disease with osteoarthritis of the right knee, manifested by limited flexion, and Osgood Schlatter's disease with osteoarthritis of the right knee, manifested by limited extension alone and discuss the effect of the Veteran's bilateral knee disabilities on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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). (b) Obtain an opinion from an appropriate clinician regarding whether the Veteran's (a) bilateral hamstring weakness, (b) right ankle weakness, and (c) bilateral knee "buckling" is at least as likely as not (1) related to, (2) proximately due to, or (3) aggravated beyond its natural progression by the Veteran's service-connected Osgood Schlatter's disease with osteoarthritis of the left knee, manifested by limited flexion, Osgood Schlatter's disease with osteoarthritis of the right knee, manifested by limited flexion, and Osgood Schlatter's disease with osteoarthritis of the right knee, manifested by limited extension. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. All bilateral knee and leg symptoms attributed by the examiner to the Veteran's prior stroke must be supported by a complete explanation and rationale. All medical literature reviewed in formulating the requested opinions must be identified and reasons given for reliance thereon and assignment of weight thereto. The examiner must provide a complete rationale for all opinions provided. 4. Ensure that the examiner has substantially responded to the questions posed by the Board, and if not, take corrective action. Then readjudicate the remanded claims. 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.