Citation Nr: 21068514 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 06-15 657 DATE: November 10, 2021 REMANDED Entitlement to an increased evaluation in excess of 30 percent prior to December 16, 2013, for service-connected degenerative joint disease of the right knee is remanded. Entitlement to a rating in excess of 40 percent from December 16, 2013, for service-connected degenerative joint disease of the right knee is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1980 to August 1990. This appeal was previously decided by the Board of Veterans' Appeals (Board) in November 2019. In its decision, the Board, in relevant part, denied entitlement to an increased evaluation in excess of 30 percent prior to December 16, 2013, and in excess of 40 percent thereafter for service-connected degenerative joint disease of the right knee. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court), and in January 2021, the Veteran and the Acting Secretary of Veterans Affairs (collectively, the Parties) filed a Joint Motion for Partial Remand (JMPR). In that JMPR, the Parties moved the Court to vacate and remand the part of the Board's November 2019 decision that denied entitlement to an increased evaluation in excess of 30 percent prior to December 16, 2013, and in excess of 40 percent thereafter for service-connected degenerative joint disease of the right knee. The Court granted that JMPR in February 2021, and the matter was subsequently remanded by the Board in June 2021. As a result, this matter is again before the Board. Pursuant to the February 2021 JMPR, the Board remanded this appeal in June 2021 to obtain a VA opinion that adequately describes the Veteran's functional loss due to flare ups throughout the period on appeal. Specifically, according to the JMPR, the Board erred by failing to ensure compliance with the August 2018 remand directives. That directive, in pertinent part, required that the examiner provide a retrospective opinion regarding the degree of additional functional loss attributable to flare-ups noted on the previous VA examinations since September 26, 2005 (in November 2006, July 2007, January 2008, December 2013, July 2014, and January 2017), and whether functional loss due to flare-ups had any effect on the Veteran's right knee range of motion (ROM) and any limitation thereof. Moreover, the March 2019 examiner stated that the Veteran was not currently experiencing any right knee flare-ups and that there was no evidence "to further buttress previous documentations" of such episodes in prior VA examinations. However, no supporting rationale or explanation was provided for this conclusion. In this case, the Board finds the July 2021 opinion obtained pursuant to the June 2021 Board remand inadequate. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). In the July 2021 opinion, the examiner notated the relevant evidence of record regarding the Veteran's right knee disability. However, no estimates regarding additional functional loss attributable to flare ups were provided in the evidence notations. In addition, the examiner stated that since September 2005, the Veteran's right knee showed abnormality upon ROM measurements and that "during flare up of the right knee, claimant's ROM would be reduced due to pain flexion 0-120 deg that would occur 3-4 times a week, lasting 2-3 hours." The broad estimate provided of 0-120 degrees upon flexion regarding additional functional loss does not coincide with, and in many instances, is a higher ROM than, those in the VA examinations of record. For instance, a December 2013 VA examination shows the Veteran's right knee ROM to 95 degrees upon flexion, and a January 2017 VA examination shows the Veteran's right knee ROM to 60 degrees upon flexion. The Board is not able to make an informed decision regarding additional functional loss due to flare ups based on this opinion, as the estimate provided by the examiner regarding additional functional loss shows ROM measurements higher than those found in many of the pertinent VA examinations of record. As such, the Board finds that a remand is necessary in order to obtain a new opinion that adequately addresses the JMPR's agreed-upon errors and more thoroughly describes the Veteran's functional loss due to flare ups throughout the period on appeal. The matters are REMANDED for the following action: Obtain a new opinion by an appropriate clinician for the purpose of eliciting a retrospective opinion (and examination, if found necessary) regarding the Veteran's right knee disability. The examiner must review the claims file, and then must: (a) provide, to the extent possible, a retrospective opinion regarding the degree of additional functional loss, if any, attributable to flare-ups noted on the previous VA examinations (including those in November 2006, July 2007, January 2008, December 2013, July 2014, and January 2017) since September 26, 2005; (b) provide a retrospective opinion as to what, if any, effect the Veteran's functional loss due to flare-ups had on his right knee range of motion and any limitation thereof since September 26, 2005. A complete rationale should be provided for any opinions rendered. If an opinion cannot be adequately rendered, the examiner must fully explain why. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ariasaif, Mary 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.