Citation Nr: 21070812 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 15-42 676A DATE: November 26, 2021 REMANDED Entitlement to an initial disability rating in excess of 10 percent for left knee osteoarthritis is remanded. Entitlement to compensation under 38 U.S.C. 1151 for a left eye disability is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1964 to February 1966. This case has been before the Board multiple times, most recently in January 2021 when it was remanded for additional development. There has not been substantial compliance with the remand directives and the claims must be remanded again. Stegall v. West, 11Vet. App.268 (1998). 1. Entitlement to an initial disability rating in excess of 10 percent for left knee osteoarthritis is remanded. The Board remanded the left knee claim to address the Veteran's reports of flare-ups throughout the period on appeal, including in a February 2020 statement. In May 2021, the Veteran underwent a VA examination to evaluate the severity of his left knee disability. While the examination report notes the Veteran's reports of increased pain, weakness and lack of endurance during periods of flare-ups, the examiner provided range-of-motion estimates of left knee flexion and extension that was identical to initial testing. No explanation was provided in the examination report about these identical findings despite statements from the Veteran suggesting he experiences decreases in functional mobility of his left knee during periods of flare-ups. Further, no explanation was provided for why complete Correia-compliant range-of-motion test results were absent in the examination report, particularly with respect to weightbearing vs. nonweight-bearing positions. Correia v. McDonald, 28 Vet. App. 158 (2016). A new VA examination with complete findings for the Veteran's knee is therefore needed on remand. 2. Entitlement to compensation under 38 U.S.C. 1151 for a left eye disability is remanded. In January 2021, the Board remanded this issue to obtain an addendum opinion. In March 2021, the Veteran underwent a VA eye conditions examination. However, the examiner failed to address the specific questions presented in the previous Board remand. Remand is again needed to obtain an adequate examiner's opinion that specifically addresses the Board's questions. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left knee osteoarthritis. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's left knee disability under the rating criteria. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. The examiner must test the Veteran's active motion, passive motion, range-of-motion with weight-bearing and without weight-bearing. If range-of-motion findings in any of these positions cannot be obtained and documented in an examination report, the examiner must explain why this is so. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Please review the examination report to ensure that it actually complies with the remand directives stated above. Specifically, if range-of-motion measurements are not provided by the examiner in compliance with Correia, the examination must be returned to obtain complete medical findings. 3. Obtain an addendum opinion regarding the Veteran's 38 U.S.C. § 1151 claim for a left eye disability from an appropriate examiner. Copies of all pertinent records must be provided for the examiner's review of the relevant history, including especially of the treatment in question. Based on a review of the records, the examiner must answer the following questions: (a.) Is it at least as likely as not (50 percent or greater probability) that there was an additional disability as a result of the August 2004 cataract surgery? The examiner must consider that the Veteran had double-vision ever since the surgery; not that it first manifested several years after. (b.) If, after considering the Veteran's competent lay statements that he experienced double vision since August 2004 but the examiner determines it was not manifest until October 2004, the examiner must comment of the significance of onset within 2 months of surgery, rather than immediately. (c.) If an additional disability is found, is it at least as likely as not (50 percent or greater probability) that the additional disability was the result of (a) carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA, (b) lack of informed consent or (c) an event that was not reasonably foreseeable. In answering this question, the examiner must comment on (i) the informed consent dated August 2, 2004, with regard to whether it offered careful explanation of the proposed diagnostic or therapeutic procedure or course of treatment, the expected benefits, reasonably foreseeable associated risks, complications, or side effects, reasonable and available alternatives, and anticipated results if nothing is done and whether it was in accordance with general medical standards for the Veteran's eye procedure, and; (ii) that an "event not reasonably foreseeable" need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. A complete rationale must be provided for any opinion offered. If an opinion cannot be offered, the examiner must indicate why that is the case. M. E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Komperda, 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.