Citation Nr: 21065954 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 15-30 891 DATE: October 28, 2021 ISSUES Entitlement to a rating in excess of 10 percent for right knee disability. REMANDED Entitlement to a rating in excess of 10 percent for right knee disability is remanded. REASONS FOR REMAND The Veteran was a member of the Army National Guard, with periods of active duty from June 1989 to November 1989, January 1999 to June 1999, February 2003 to June 2004, June 2005 to October2006, January 2009 to April 2010, and June 2014 to June 2015. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). These matters were previously remanded by the Board in March 2019, August 2020, and May 2021. However, the Board finds that an additional remand is necessary in this case. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order); see generally Sharp v. Shulkin, 29 Vet. App. 26 (2017) (an opinion should be formulated using all procurable evidence, to include the Veteran's lay statements). Entitlement to a rating in excess of 10 percent for right knee disability is remanded. This matter was last remanded by the Board in May 2021. In its remand, the Board directed the AOJ to obtain a VA retrospective opinion regarding the Veteran's right knee, to include the frequency, duration, characteristics, severity, and functional loss during period of flare ups from April 26, 2011 to present. The remand specifically noted that if the clinician determined that an examination is required one must be provided. In response, a VA opinion was furnished based solely on a review of the records. The July 2021 opinion concluded that "[t]here is not enough information currently available, without an in-person exam, to formulate a retrospective opinion regarding additional loss of degrees." Thereafter, an addendum opinion was provided by a different VA examiner in August 2021. The examiner again noted a review of the Veteran's file and stated that the previous opinion was incorrect. The examiner provided a description of the Veteran's knee pain and functional loss based on the record and without an interview or examination of the Veteran. However, the examiner did not provide any range of motion or an opinion regarding additional loss of degrees retrospectively, and instead noted that "[a] new examination is not going to provide any information that would address the request for a retrospective opinion on the Veteran's frequency, duration, characteristics, and severity of flare-ups." However, 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 over time. Nonetheless, the examiner should still estimate any additional functional impairment based on the evidence of record and the Veteran's lay descriptions of repeated use or flares' severity, frequency, duration, and/or functional loss manifestations. To be clear, the Veteran should be asked to give a retrospective lay description of such characteristics, and the examiner should consider her response in formulating the opinion. Therefore, the Board once again remands this matter for a retrospective opinion on functional loss for the period from April 26, 2011, forward. In doing so, the examiner must answer whether pain, weakness, fatigability, or incoordination cause additional functional impairment on repeated use overtime or during flare-ups. The examiner should assess additional functional impairment in terms of the degree of additional range-of-motion loss, if possible. If it is not feasible to determine the extent to which the Veteran experiences additional functional impairment on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why this is so. The examiner is further advised that the inability to provide an opinion without resorting to speculation must be based 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. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his right knee disability. The examiner must review the entire claims file, to include a copy of this REMAND, in conjunction with the examination. The examiner is asked to express a retrospective opinion on functional loss for the period from April 26, 2011 to present. In doing so, the examiner must answer whether pain, weakness, fatigability, or incoordination cause additional functional impairment on repeated use overtime or during flare-ups. The examiner should assess additional functional impairment in terms of the degree of additional range-of-motion loss, if possible. 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 over time. Nonetheless, the examiner should still estimate any additional functional impairment based on the evidence of record and the Veteran's lay descriptions of repeated use or flares' severity, frequency, duration, and/or functional loss manifestations. To be clear, the Veteran should be asked to give a retrospective lay description of such characteristics, and the examiner should consider his response in formulating the opinion. If it is not feasible to determine the extent to which the Veteran experiences additional functional impairment on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why this is so. The examiner is further advised that the inability to provide an opinion without resorting to speculation must be based 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. A complete rationale must be provided for all opinions expressed. 2. Finally, readjudicate the appeal. If any of the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Tunis, 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.