Citation Nr: 21066327 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 11-24 843 DATE: October 29, 2021 REMANDED Entitlement to a rating in excess of 10 percent for right knee arthritis is remanded. Entitlement to a rating in excess of 10 percent prior to January 17, 2013, and in excess of 30 percent from March 1, 2014, for left knee arthritis status post knee replacement is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1967 to September 1994. These matters come to the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. By way of background, the Board previously remanded these claims in September 2014, September 2017, and August 2020. Most recently, the Board remanded for an additional VA examination, but the examination did not occur at the Veteran's request. As will be discussed in more detail below, the Board finds remand is again necessary in an effort to obtain a retrospective medical opinion based on the evidence of record to ensure substantial compliance with the Board's previous remand directives and provide sufficient medical evidence to assign disability ratings during the period on appeal. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes, regarding the left knee disability, the Veteran was granted a 100 percent disability rating from January 17, 2013, through April 30, 2014. The 100 percent grant from January 17, 2013, through April 30, 2014, constitutes a full grant of the benefits sought on appeal and, therefore, there remains no further case or controversy during this period. Prior to January 17, 2013, and after April 30, 2014, however, the Veteran's disability ratings assigned only constitute a partial grant of the benefits sought on appeal; therefore, the issue remains on appeal and is for consideration by the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). The claim has been appropriately recharacterized above. 1. Entitlement to a rating in excess of 10 percent for right knee arthritis is remanded. 2. Entitlement to a rating in excess of 10 percent prior to January 17, 2013, and in excess of 30 percent from March 1, 2014, for left knee arthritis status post knee replacement is remanded. The Veteran contends his right and left knee disabilities should be assigned higher disability ratings. The Board finds the evidence of record is insufficient to resolve his claims and remand is again necessary to obtain a retrospective opinion. Previously, the Veteran was afforded a VA examination in June 2019 during which the examiner found the Veteran was essentially bedbound due to non-service-connected chronic inflammatory demyelinating polyneuropathy (CIDP) that had "overtaken" his service-connected knee disabilities. The examiner was unable to perform active range of motion (ROM) testing but did obtain passive ROM results. Regarding flare-ups, the examiner stated that he could not say whether there was additional functional limitation as the Veteran was wheelchair and bed bound and ROM "remains as set" during a 2016 VA examination. The examiner also opined that the Veteran's ROM loss was due to the impinging effects of CIDP, and the Veteran's knees were otherwise normal. The examiner, however, failed to provide any rationale in support of that opinion. Further, the examiner later stated that the Veteran's ROM loss was as indicated in the 2016 VA examination but then contrarily stated that his knee disabilities no longer caused functional impairment and all functional loss was due to CIDP. The Board found that the June 2019 examination provided an insufficient basis to distinguish between the symptoms of the Veteran's non-service-connected CIDP and his service connected knee disabilities, noting that the Board is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence which does so. Mittleider v. West, 11 Vet. App. 181 (1998). The Board also requested an examination be performed by someone with a specialty in orthopedics or neurology given the complex nature of the interaction between CIDP and the bilateral knee disabilities, in light of the 2019 VA examination completed by a psychiatrist. Following the Board's August 2020 remand, VA scheduled an additional examination, however, the Veteran requested said examination be cancelled. See August 2021 Report of General Information. Specifically, the Veteran stated that he is unable to attend examinations due to a non-service-connected condition and wishes VA to proceed with concluding the pending appeals. While the Board is sympathetic to the Veteran's desire to resolve his claim and regrets additional delay, a resolution of his pending claims cannot be rendered without first attempting to obtain a retrospective opinion to discern the severity of the Veteran's right and left knee disabilities during the period on appeal and whether the right and left knee disability symptoms can be differentiated from his non-service-connected CIDP. See Mittleider, 11 Vet. App. at 181 (holding that when a claimant has both service-connected and nonservice-connected disabilities, the Board must attempt to discern the effects of each disability and, where such distinction is not possible, attribute such effects to the service-connected disability). While the Board desired the benefit of an additional examination to ensure there is evidence sufficient for rating purposes, in light of the Veteran's request to resolve his pending appeals without an additional examination, the Board finds a retrospective opinion is necessary. Thus, in light of the uniqueness of this case and the Veteran's desire not to participate in a VA examination, these claims are remanded to obtain a retrospective opinion to reconcile conflicting findings and determine whether symptoms attributable to the Veteran's right and left knee disabilities may be differentiated from those associated with non-service-connected CIDP. The matters are REMANDED for the following action: 1. Provide the entire claims file and this remand to an examiner specializing in orthopedics or neurology for review to determine the nature and severity of the Veteran's service-connected right and left knee disabilities. The examiner should render a retrospective opinion, including rationale, which is based on the evidence of record and addresses the following: - Whether the Veteran's symptoms can be differentiated between his service connected knee disabilities and his non-service-connected chronic inflammatory demyelinating polyneuropathy (CIDP). If so, which findings are attributable to service-connected right and left knee disabilities versus non-service-connected CIDP? The examiner should explain the basis for that determination and if the examiner is unable to distinguish between the symptoms of the Veteran's service-connected knee disabilities and non-service-connected CIDP, the examiner should so indicate and explain why. In so opining, the examiner is directed to consider and address the 2019 VA examination noting that the Veteran's knee disabilities have been overrun by CIDP and symptoms, including the severity of flare-ups, could not be determined due to CIDP. - Based on the evidence of record, and to the extent possible, the examiner should attempt to identify all right and left knee symptoms and the severity thereof during the period on appeal, including the frequency and duration of any flare-ups. The examiner should specifically describe the severity, frequency, and duration of flare-ups; name the precipitating and alleviating factors; and estimate, per the Veteran, to what extent, if any, such flare-ups affect functional impairment, to the extent possible. The examiner shall describe any additional functional impairment and / or functional loss in connection with the flare-ups in terms of the degree of additional range of motion loss. If it is not feasible to determine, even by estimation, the extent to which the Veteran experienced additional functional loss during flare-ups without resorting to speculation, the examiner must provide an explanation for why this is so. Attention is invited especially to the Veteran's statements during the 2019 VA examination reporting flare-ups occurring before being diagnosed with CIDP. The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. (Continued on the next page) 2. After the above development, and any other development deemed necessary, readjudicate the claims. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.C. Allen, 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.