Citation Nr: 21073454 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 16-46 404 DATE: December 8, 2021 REMANDED Entitlement to a rating in excess of 10 percent for right knee chondromalacia patella with degenerative changes is remanded. Entitlement to a rating in excess of 10 percent for left knee chondromalacia patella with degenerative changes is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from October 1971 to September 1975 and from February 1976 to February 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In this regard, the record shows that a November 2011 VA examination report was associated with the record within a year of the May 2011 rating decision relevant to the Veteran's knee disabilities. However, since the RO never determined whether the 2011 VA examination report constituted new and material evidence with respect to the May 2011 rating decision, that decision never became final and the Veteran's November 5, 2010 claim remains pending. 38 C.F.R. § 3.156(b). The Board remanded the claims in April 2019 and June 2021. Notably, during the pendency of this appeal, an April 2020 rating decision awarded service connection for a lumbar spine disability. This issue is accordingly not in appellate status. 1. Entitlement to a rating in excess of 10 percent for right knee chondromalacia patella with degenerative changes is remanded. 2. Entitlement to a rating in excess of 10 percent for left knee chondromalacia patella with degenerative changes is remanded. Although the Board regrets the additional delay, a remand is again necessary, as there has not been substantial compliance with the directives of the April 2019 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand confers upon the claimant, as a matter of law, the right to compliance with the remand directives). The examiner was asked to provide a retrospective medical opinion on the measurements required by 38 C.F.R. § 4.59 since the beginning of the appeal period, and any additional functional loss due to flare-ups. However, the November 2019, March 2021, and August 2021 VA examiners did not provide a retrospective medical opinion as requested. Furthermore, the August 2021 VA examiner did not provide a valid explanation as to why she could not estimate the resulting additional functional loss during a flare-up in degree of range of motion, as required by Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). A remand is therefore needed for an addendum opinion in addition to any outstanding treatment records. 3. Entitlement to a TDIU is remanded. Action on this inextricably intertwined claim is deferred pending the above development and must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records, to include records pertaining to the 2017 bilateral total knee replacement. 3. Then obtain a retrospective opinion from an examiner other than the September 2015 and August 2021 VA examiners addressing the nature and severity of the Veteran's bilateral knee disabilities. The entire claims file should be made available to the examiner. No additional examination is necessary unless the examiner determines otherwise. Following a review of the claims file, to include the February 2011, November 2011, September 2015, November 2019, March 2021, and August 2021 VA examination reports, as well as the Veteran's description of functional loss and flare-ups therein, the examiner should: (a) Provide an opinion as to the range of motion of the left and right knees from November 2010 in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in nonweight-bearing. If unable to do so, please explain why. (b) Then provide an opinion describing functional impairment of the Veteran's left and right knees on repetitive use and due to flare-ups since November 2010, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. If unable to provide such an opinion without resorting to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). Noting that the Veteran was not examined after repetitive use or during a flare-up will not suffice. A complete rationale shall be given for all opinions and conclusions expressed. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.S. Mahoney 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.