Citation Nr: 21074815 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 08-26 718 DATE: December 16, 2021 REMANDED A rating higher than 10 percent for a left knee disability, limitation of flexion, prior to June 15, 2009, is remanded. A rating higher than 10 percent for a left knee disability, limitation of extension, prior to June 15, 2009, is remanded. A rating higher than 10 percent for a left knee disability, instability, prior to June 15, 2009, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1966 to October 1992. The Court of Appeals for Veterans Claims remanded his left knee increased rating claim to the Board of Veterans' Appeals (Board) in November 2020. The Board then remanded the claim to the agency of original jurisdiction (AOJ) in February 2021 and May 2021. The Board directed the AOJ to obtain a retrospective medical opinion on the nature and severity of the Veteran's left knee disability for the period prior to June 15, 2009. The Board provided detailed instructions for the AOJ and the examiner with respect to this opinion. Specifically, the Board instructed the examiner to address whether pain and other factors would have significantly limited functional ability of the knee during flare-ups and with repeated use over time. In doing so, the examiner was to review the May 2006 and March 2009 VA examinations, as well as other pertinent evidence, including VA and private medical records and lay statements from January 2006, May 2007, and September 2008. The Board also instructed that, if the examiner was unable to provide an opinion without resorting to mere speculation, the examiner must explain why this is so. The examiner needed to explain "whether the inability to provide a more definitive opinion is the result of a need for additional information (for example, the need to obtain a more thorough history from the Veteran) or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s)." Remand at 4. A VA contractor examined the Veteran in July 2021 but did not provide a retrospective opinion. After the AOJ requested clarification, the examiner offered a September 2021 addendum, which indicated that "[only] the original examiners [from 2006 and 2009]" could provide a retrospective assessment. The examiner went on to say that the Veteran has not sought medical care for his knee since 2009 and that he "does not [currently] have flare-ups." The Board finds that the July/September 2021 examiner failed to adequately explain why they were unable to provide an opinion on the severity of the disability prior to June 2009, based on the available evidence. It is not clear from the addendum whether this inability is due to a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts), a deficiency in the record (i.e., additional facts are required, and if so, precisely what facts), or the examiner (i.e., they do not have the knowledge or training). See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). Notably, the examiner did not discuss any specific findings from the pre-2009 examinations, or any of the other specific evidence identified in the Board's remands. Another remand is necessary to ensure compliance with the Board's previous instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA undertakes the effort to provide a VA examination or obtain an opinion, it must ensure that the examination or opinion is adequate). The Board by this remand makes no determination, expressed or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: 1. Obtain an addendum retrospective opinion on the nature and severity of the Veteran's service-connected left knee disability, to include limitation of flexion, limitation of extension and instability, prior to June 15, 2009. The examiner must review the entire claims file, including this remand. In particular, the examiner must clearly consider and discuss the following evidence in the opinion: (a) the May 2006 and March 2009 VA examinations; (b) the March 2021 VA retrospective medical opinion; (c) any relevant VA and private medical records for the period prior to June 15, 2009; and (d) the Veteran's lay statements from January 2006, May 2007, and September 2008. Based on the available evidence, the examiner must provide a full description of the Veteran's specific symptoms and functional impairments prior to June 15, 2009. The examiner must then provide an opinion on whether pain and other factors would have significantly limited functional ability of the knee during flare-ups and with repeated use over time. The opinion must address limitation of flexion, limitation of extension, and instability of the knee. To the extent possible, the examiner should provide an estimate of additional impairment due to flare-ups and repeated use over time in terms of additional degrees of limitation of motion beyond what was recorded on the previous examinations. If it is not possible to provide an opinion or 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, and if so, precisely what facts), or the examiner (does not have the knowledge or training). 2. Review the medical opinion above to ensure substantial compliance with the Board's directives. Take any necessary corrective action. 3. Readjudicate the Veteran's claims in a supplemental statement of the case, and allow the Veteran and his representative the opportunity to respond. Then return to the Board for further appellate review. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.Z. Wall, Associate 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.