Citation Nr: 21074943 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 16-53 794A DATE: December 16, 2021 REMANDED Entitlement to an increased evaluation of a left knee disability, rated as 10 percent disabling from April 20, 2012 due to internal derangement of the left knee; as 10 percent disabling from October 11, 2016, and 20 percent disabling from July 1, 2021, due to left knee instability; and as 50 percent disabling from July 1, 2021, due to limitation of left knee extension. REASONS FOR REMAND The Veteran had active military service from October 2004 to June 2007. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in April 2020, at which time the issue of an increased rating for the left knee, currently on appeal, was remanded for additional development. This case has been returned to the Board for further appellate action. It is noted that the previous remand also included a remand of a claim for entitlement to a total disability rating based on individual unemployability (TDIU). During the pendency of the ordered development, the Veteran was awarded TDIU effective April 20, 2012, the date of the claim for an increased rating for the left knee. As that constitutes a complete grant of the issue on appeal, entitlement to TDIU is no longer before the Board. A remand is necessary in order to ensure compliance with the April 2020 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In its April 2020 remand, the Board directed that retrospective opinions be provided on the July 2013 and October 2016 VA examinations as to the manifestations and functional impairment due to the Veteran's service-connected left knee disabilities for the period prior to the current examination. The Board finds that the July 2021 VA examination to be inadequate. Although a physical examination which addressed the present severity of the Veteran's disability was obtained, the examiner failed to provide the retrospective opinions as directed by the April 2020 remand. In light of the forgoing, a remand for retrospective opinions is warranted. Stegall, 11 Vet. App. at 268. Additionally, the Board notes that following the July 2021 examination, the RO issued a rating decision in September 2021 which granted partial increased ratings for the left knee as well as entitlement to TDIU and Dependents' Educational Assistance (DEA) benefits from June 12, 2020. The Veteran requested higher level review of the TDIU grant, specifically requesting review of the effective date for that grant, as well as the grant of entitlement to DEA benefits. In November 2021, the RO issued a rating decision which established TDIU and entitlement to DEA effective April 20, 2012, essentially granting that benefit to the earliest date possible as part of this appeal. However, despite not asserting any issue with the ratings assigned for the left knee, also included by the RO in that decision was a finding that the July 2021 VA examination likely included a duty to assist error, and the ratings for the knee disability would need additional development, to be scheduled shortly. As the RO has concluded that additional development of the left knee rating is necessary, and that development has not been conducted as of this time, the Board will also request that an additional examination be scheduled as part of the remand in this matter. The matters are REMANDED for the following action: 1. Invite the Veteran to submit any additional evidence in support of his appeal. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for an appropriate VA examination to determine the current level of severity of all impairment resulting from his service-connected left knee disabilities. The claims file must be made available to and reviewed by the examiner. All indicated tests should be performed and all findings should be reported in detail. The examiner should provide all information required for rating purposes, to specifically include range of motion in active motion, passive motion, weight bearing, and non-weight bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner must report whether there is a lack of normal endurance or functional loss due to pain and pain on use, including that experienced during flare ups and repeated use; whether there is weakened movement, excess fatigability, incoordination; and the effects of the service-connected disability on the Veteran's ordinary activity, including his ability to work. If it is not possible to provide a specific measurement without speculation, the examiner must explain the deficiency. Additionally, to the extent possible, the examiner should provide retrospective opinions as to the manifestations and functional impairment due to the Veteran's service-connected left knee disabilities for the period prior to the current examination. Specifically, estimates regarding range of motion findings must be provided in degrees, for active and passive motion, and on weight-bearing and non-weight bearing status based on the July 2013 and October 2016 examination reports, as well as the degree of functional loss during flare-ups due to pain, fatigue, and weakness, based on the October 2016 examination report. If the examiner is not able to provide such a retrospective opinion, they should explain why this is the case, in writing. M. Pryce Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ivan Franklin 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.