Citation Nr: 21074798 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 06-34 428 DATE: December 16, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for chondromalacia of the right knee from December 23, 2005 is remanded. Entitlement to a disability rating in excess of 10 percent for chondromalacia of the left knee from December 23, 2005 is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1971 until February 1973. In a December 2019 decision, the Board denied the claim. The Veteran subsequently appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 order, the Court granted a Joint Motion for Remand (JMR), which vacated the Board's decision and remanded the Veteran's appeal to the Board for action consistent with the terms of the JMR. The claim was most recently before the Board in June 2021. 1. Entitlement to a disability rating in excess of 10 percent for chondromalacia of the right knee from December 23, 2005 is remanded. 2. Entitlement to a disability rating in excess of 10 percent for chondromalacia of the left knee from December 23, 2005 is remanded. The Board is unable to make an informed decision on the increased rating claims for the right and left knee because prior examinations were inadequate. The Board's June 2021 remand directed the VA examiner to provide a retrospective opinion to the prior VA examinations for the knees to provide a range of motion (ROM) estimate for the Veteran's knees during flare-ups. In an April 2021 opinion, the VA examiner provided a retrospective opinion that estimated ROM during flare-ups. The Board notes that during the January 2006 VA examination the Veteran's initial ROM was obtained while the Veteran was not experiencing a flare-up. The Veteran's flexion for the right knee was limited to 85 degrees and his left knee flexion was limited to 75 degrees when objective evidence of painful motion began. During extension, the right knee was limited to 25 degrees and the left knee was limited to 15 degrees during objective evidence of painful motion. However, in the April 2021 VA medical opinion, the examiner opined that during the January 2006 VA examination, the Veteran's estimated ROM right and left knee flexion was limited to 100 degrees, while his right and left knee extension was normal or 0 degrees. In other words, the April 2021 VA examiner inexplicably opined that the Veteran's initial ROM was worse than his ROM during flare-ups. Therefore, the VA medical opinion is inadequate. A new VA medical opinion is warranted. Barr v. Nicholson, 21 Vet. App. 303 (2007). Entitlement to TDIU is remanded. The TDIU claim is inextricably intertwined with the increased ratings claim and adjudication of that issue will be deferred until the increased rating claims are decided. The matters are REMANDED for the following action: 1. Schedule the Veteran for the appropriate VA examination to assess the severity of his service-connected bilateral knee disabilities. Copies of all pertinent medical records should be made available to the examiner for review. All necessary diagnostic testing should be performed using the appropriate DBQ if available. If the examiner determines that an opinion cannot be provided without an examination, one should be scheduled The examiner is asked to review and provide an opinion estimating the Veteran's ROM in degrees during flare-ups for each prior VA examination beginning in January 2006. The examiner is advised that the ROM in degrees where objective evidence of painful motion begins is compensable for VA rating purposes and unless the Veteran is being examined during a flare-up, the initial ROM should not be worse than the ROM during flare-up conditions without an explanation why this is so. If the Veteran reports flare-ups, the examiner should review the Veteran's description of the factors that precipitate a flare-up and the frequency, duration, and severity of any flare-ups. The examiner should use that information to comment on the functional limitations caused by pain and any other associated symptoms. Such comments should include whether there was additional limitation of motion following repetitive testing due to pain, weakness, fatigability, etc. Any determination concerning this functional loss should be expressed in degrees of additional range of motion loss. A detailed rationale is requested for all opinions provided. The examiner is also advised that the Veteran is competent to provide evidence of symptomatology readily apparent to him, regardless of whether the symptoms are noted in the medical records or on the date of examination. 2. Then, the Agency of Original Jurisdiction (AOJ) should readjudicate, the Veteran's increased rating claim, to include any separate compensable disabilities from the Veteran's multiple reports of experiencing knee instability and locking. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to TDIU. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Perkins, 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.