Citation Nr: 21066448
Decision Date: 11/01/21	Archive Date: 11/01/21

DOCKET NO. 11-26 945
DATE: November 1, 2021

REMANDED

Entitlement to a rating greater than 10 percent for right knee meniscal tear and degenerative arthritis prior to January 2, 2018, is remanded.

Entitlement to a rating greater than 40 percent for right knee meniscal tear and degenerative arthritis after January 2, 2018, is remanded. 

Entitlement to a rating greater than 30 percent for left knee status post arthroplasty prior to January 2, 2018, is remanded. 

Entitlement to a rating greater than 40 percent for left knee status post arthroplasty after January 2, 2018, is remanded. 

Entitlement to a total disability rating based on individual employability (TDIU) due to service-connected disabilities is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Marine Corps from December 1993 to May 1994.  

Historically, the Board denied these appeals in June 2020.  In June 2021, the Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Remand (JMR), thereby vacating the Board's determinations and remanding the matters for further review.

In pertinent part, the Court's Order held that February 2016 and January 2018 VA knee examinations did not properly address whether the Veteran's bilateral knee pain significantly limited his functional ability, or whether said limitation could be feasibly described in terms of additional loss of motion.  See JMR, p. 3; Sharp v. Shulkin, 29 Vet. App. 26, 34-35 (2017).  At the Court's direction, remand of both time periods is now required for such retrospective opinions.

The Court also found that the Board was required to consider the Veteran's entitlement to a TDIU.  On this point, the record is in controversy as to the Veteran's employment history.  See August 2017 VA Form 21-8940 (reporting employment through May 2010); but see July 2014 VA Form 21-4192 (reporting that the Veteran gave notice "due to another job offer" in May 2010).  Clarification is required on this point before a determination may be made.  

The matters are REMANDED for the following actions:

1.  Obtain a retrospective addendum opinion from an examiner regarding the severity of the Veteran's right and left knee disabilities at the time of his February 2016 and January 2018 VA examinations.

The claims folder must be provided to the examiner in conjunction with the examination.  

The examiner must address the following:

(a) Offer retrospective assessments of the Veteran's bilateral knee disabilities at the time of the February 2016 AND January 2018 VA examinations, addressing the provisions of Sharp (specifically, whether pain significantly limited the Veteran's functional ability at those times, and if so, whether the degree of additional range of motion loss can be feasibly portrayed).  

If not, it must be clear that the examiner has considered all procurable and assembled data before stating than an opinion cannot be reached. 

If the examiner cannot provide an opinion without resorting to mere speculation, s/he must provide a complete explanation for why an opinion cannot be rendered.

2.  Provide the Veteran with a new VA Form 21-8940 and request its completion, to include a full and accurate work history (including any position taken after May 2014). 

 

Evan M. Deichert

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. Kovarovic, 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.