Citation Nr: 21069689 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 15-25 030 DATE: November 19, 2021 REMANDED Entitlement to a rating in excess of 10 percent for monoarticular arthritis with eosinophilic effusion right knee with instability is remanded. Entitlement to a compensable rating prior to June 11, 2021, and a rating in excess of 10 percent from that date for right knee limitation of extension is remanded. REASONS FOR REMAND The Veteran had active service from September 1958 to November 1962 and from November 1962 to May 1980. In December 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In a September 2019 decision, the Board denied an increased rating for the service-connected right knee arthritis and granted a separate noncompensable rating for limitation of extension of the right knee. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In August 2020, the Court granted a Joint Motion for Partial Remand (JMPR) regarding the denial of the increased rating for the arthritis and entitlement to a compensable rating for the limitation of extension. The Court did not disturb the grant of a separate rating for the limitation of extension. The Board remanded the claim for increased ratings for the service-connected right knee disabilities in February 2021 for actions consistent with the August 2020 JMR. In a September 2020 decision, the Board denied entitlement to a rating in excess of 10 percent from March 23, 2016, for plantar callus and bone spur, little toe of left foot (left foot condition). The Veteran appealed that decision to the Court. In September 2021, the Court vacated the September 2020 Board decision and remanded the issue for further consideration consistent with a JMPR filed by counsel for the Veteran and the VA Secretary. In September 2021, the Board informed the Veteran and his representative that the issue had been received by the Board following issuance of the Court's remand decision, and that they have an opportunity to submit additional argument and/or evidence in support of the appeal within 90 days of the letter. 90 days have not yet elapsed since the date of that letter, and the Veteran has not indicated that he would like to waive the 90-day period. Therefore, the issue remanded by the Court in September 2021 is not currently ripe for consideration, and it will be the subject of a future Board decision, if otherwise in order. 1. Entitlement to a rating in excess of 10 percent for monoarticular arthritis with eosinophilic effusion right knee with instability is remanded. 2. Entitlement to a compensable rating prior to June 11, 2021, and a rating in excess of 10 percent from that date for right knee limitation of extension is remanded. The claims must be remanded to obtain an adequate medical opinion. The February 2021 Board remand instructed the agency of original jurisdiction (AOJ) to schedule the Veteran for an examination to determine the current severity of his service-connected right knee disabilities. The Board specified that the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing, and should include an estimate of additional functional loss during flareups and on repetitive use over time or an explanation as to why such an estimate cannot be provided. The Board also asked that the examiner provide a retrospective opinion as to the severity of the Veteran's service-connected right knee disabilities during the period from April 22, 2010, to March 19, 2018, to include an estimate of the Veteran's right knee range of motion on active and passive motion, in weight-bearing and nonweight-bearing positions, on flareups, and upon repetitive use over time during that period. On remand, the Veteran was afforded a VA examination in June 2021. The examination report includes adequate measurements and statements as to the Veteran's current right knee limitations, including on active and passive motion, in weight-bearing and nonweight-bearing positions, on flareups, and upon repetitive use over time. However, in addressing the Board remand's request for a retrospective opinion for the period from April 22, 2010, to March 19, 2018, the stated, "I am unable to determine ROM without mere speculation. The claimant was not examined during repeated use over a period of time and could not demonstrate the decrease ROM with repeated use over time or during flare ups." The opinion is not adequate for decision-making purposes because the examiner does not explain why they could not provide the range of motion measurements without resort to mere speculation. The examiner did not explain why the Veteran's statements, to include those he made at the time of October 2012 and March 2016 VA examinations, and other evidence of record are insufficient to provide an estimate. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). The issue must be remanded so that an adequate retrospective opinion may be obtained. In addition, the Veteran's representative requested in an October 2021 brief that VA provide the curriculum vitae and other information about the qualifications of the June 2021 VA examiner that demonstrates that she was competent to provide the requested retrospective opinion. The Board finds that the representative's request for "other information" is overly vague and, therefore, that further action need not be taken on that request unless or until the representative or the Veteran further specify what sort of information is sought. See 38 C.F.R. § 3.159(c)(1)(i) and (2)(i) (stating that the claimant must provide enough information to identify and locate existing records). However, the representative's request for the June 2021 VA examiner's curriculum vitae must be addressed. See Nohr v. McDonald, 27 Vet. App. 124 (2014); see also Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). If the information requested is not available, then the AOJ should advise the Veteran and his representative of such and note the reasons for such in the record. The matters are REMANDED for the following action: 1. Request a resume or curriculum vitae from the examiner who conducted the June 2021 VA knee and lower leg conditions examination. Upon receipt of the resume or curriculum vitae, associate it with the record and provide the Veteran and his representative copies thereof for review. If the requested resume or curriculum vitae is not obtainable, the Veteran and his representative should be so advised and the reasons for such should be noted in the record. 2. Obtain a retrospective opinion from an appropriate clinician as to the severity of the Veteran's service-connected right knee disabilities for the period from April 22, 2010, to March 19, 2018. The examiner is asked to estimate the Veteran's right knee range of motion on active and passive motion and in weight-bearing and nonweight-bearing positions during that period. The examiner is also asked to opine as to whether the Veteran had additional functional loss during flareups or upon repetitive use over time during that period. The opinions should be based on the evidence of record, to include the Veteran's subjective reports at the October 2012 and March 2016 VA examinations and in the medical treatment records. The examiner should note that an examination need not be conducted during a flareup or following repetitive use over time for the functional impairment experienced in such instances to be taken into account. Case law and VA guidelines anticipate that examiners will offer opinions on flareups and repetitive use over time based on estimates derived from information procured from relevant sources, including the lay statements of the veteran being examined. Examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment during flareups and on repetitive use over time from the veterans themselves. If the examiner determines that it is not possible to provide an opinion without speculation even in view of such information, the examiner must provide an explanation of why that is so and state whether the need to speculate is due to a deficiency in the state of general medical knowledge, a deficiency in the record, or a deficiency in the examiner's knowledge. If additional information would allow for an opinion, the examiner should identify the information needed. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. J. Anthony, 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.