Citation Nr: 21068102 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 15-14 175A DATE: November 9, 2021 REMANDED Entitlement to an increased rating in excess of 30 percent prior to December 1, 2015, and a rating in excess of 60 percent since February 1, 2017 and thereafter, for a ligament injury to the left knee, status post reconstructive surgery with traumatic arthritis is remanded. REASONS FOR REMAND The Veteran served on active duty with the Navy from January 1978 to June 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claims were most recently remanded by the Board in a February 2021 decision for further development. The Board finds that its prior directives were not substantially complied with and as will be discussed further, an additional remand is necessary. A remand by the Board confers on the Veteran or other claimant, as a matter of law, the right to substantial, but not strict, compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to an increased rating in excess of 30 percent prior to December 1, 2015, and a rating in excess of 60 percent since February 1, 2017 and thereafter, for a ligament injury to the left knee, status post reconstructive surgery with traumatic arthritis is remanded. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to decide on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, 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, 311 (2007). The Veteran's claim was remanded by the Board in February 2021 for a VA examination that assessed the severity of the Veteran's left knee disability for the entire time period on appeal, to include from May 19, 2009 to December 1, 2015 and since February 1, 2017. In the August 2021 VA examination, the examiner acknowledged the request to assess the Veteran's left knee throughout the appeal, but when directed to provide rationale, the examiner stated, "see above." Earlier in the examination report, the examiner stated that "there is no change in the service-connected diagnosis and no additional diagnoses have been rendered." However, the examiner failed to adequately explain whether the Veteran's left knee disability has been the same throughout the entire appeal period or cite to any evidence to support this opinion. Notably, the Veteran's left knee disability increased in severity during the appeal period necessitating a total knee arthroplasty. Thus, the Board finds it unlikely that the severity of the left knee disability has been unchanged throughout the entire appeal period as noted by the August 2021 VA examiner. Accordingly, the Board finds that it is necessary to remand the claim for a retrospective addendum medical opinion that adequately assesses the severity of the left knee disability throughout the appeal period. Chotta v. Peake, 22 Vet. App. 80 (2008). The matters are REMANDED for the following action: 1. Obtain a retrospective addendum opinion from a qualified physician regarding the severity of the Veteran's service-connected left knee disability for the entire period on appeal, to include from May 19, 2009 to December 1, 2015 and from February 1, 2017. A new examination of the Veteran is no needed for the purpose of the opinion unless required by the clinician. The examiner should opine as to the following: The extent of any painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during flare-ups, expressed as additional range of motion loss, if possible. In rendering the above requested opinion, the examiner should derive his or her estimate from relevant sources within the claims file, including Veteran's lay statements, private medical records, VA treatment records, and VA examinations. If the examiner is unable to do so, the examiner should indicate that all procurable data was considered (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. It is insufficient to conclude that the requested opinion cannot be rendered without resorting to speculation based solely on the fact that the VA examination was not performed during a period of flare-ups or based solely on objective evidence. Any opinion expressed should be accompanied by a complete rationale. 2. Readjudicate the appeal. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Hartford, 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.