Citation Nr: 21075325 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 14-39 482 DATE: December 20, 2021 REMANDED Entitlement to a rating in excess of 10 percent for left knee degenerative joint disease (DJD), status post patellar tendon repairs, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The appellant is the surviving spouse of a Veteran who served on active duty from May 1978 to August 1978 and from April 1999 to May 1999, with additional service in the Reserves. Unfortunately, the Veteran died in March 2017. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of a Department of Veterans' Affairs (VA) Regional Office, the agency of original jurisdiction (AOJ). Following the Veteran's death in March 2017, the appellant was accepted as a substitute claimant by the AOJ. See Appeal Substitution Review dated May 8, 2018. Thus, the appellant now stands in the shoes of the Veteran for purposes of adjudicating the claims to completion. See 38 U.S.C. § 5121A(a). Procedural History In June 2018, the Board denied the claims for entitlement to service connection for right knee osteoarthritis, a disability rating in excess of 10 percent for left knee DJD, a compensable disability rating for left knee instability, and entitlement to a TDIU. The appellant appealed the Board decision to the U.S. Court of Appeals for Veterans Claims (Court), resulting in a June 2019 Joint Motion for Remand (JMR) by the parties. A June 2019 Court Order vacated the Board decision and remanded the matter for compliance with the terms of the JMR. Thereafter, a December 2019 Board decision increased the rating for left knee instability to 10 percent and remanded the issues of entitlement to service connection for right knee osteoarthritis, entitlement to a disability rating in excess of 10 percent for left knee DJD, and entitlement to a TDIU for further development. An April 2021 rating decision granted service connection for right knee osteoarthritis, which is considered a full grant of the benefits sought on appeal for that claim. As such, the issue of service connection for right knee osteoarthritis is no longer before the Board. See A.B. v. Brown, 6 Vet. App. 35, 38 (1993). In August 2021, the Board again remanded the claims of entitlement to a rating in excess of 10 percent for left knee DJD and entitlement to a TDIU to ensure compliance with its December 2019 remand directives, specifically, to obtain addendum VA opinions responsive to the Board's August 2021 remand instructions. VA opinions dated September 2021 were obtained and associated with the electronic claims file and have been reviewed. However, for reasons detailed below, the Board finds there has not been substantial compliance with its August 2021 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand); Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). Left Knee Disability The Court has held that upon eliciting information from the record and the veteran regarding the severity, frequency, duration, or functional loss manifestations during, e.g., flare-ups, a VA examiner must "express an opinion on whether pain could significantly limit functional ability and the examiner's determination in that regard should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss" due to pain on use or during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). Here, in regard to the Veteran's left knee DJD, status post patellar tendon repairs, the September 2021 VA examiner observed that the Veteran was not evaluated after repetitive use or during a flare-up and declared that "ROM is not possible to determine without direct measurement, nor opinion can be given, because this is a sign which has to be examined to be determined, this is a basic principle of the medical science." See VA Medical Opinion dated September 7, 2021 at pg. 4. This is precisely the deficiency identified by the Court in Sharp where a VA examiner concluded that there was no basis for making such a determination without directly observing the function of the joint. The Court emphasized that such declarations are contradicted by VA's Clinician's Guide: "Aside from acknowledging ... that ... examiners may not be examining veterans during flares, this guidance is a recognition that direct observation of functional impairment during a flare-up is not a prerequisite to offering an opinion." Sharp, 29 Vet. App. at 35. Thus, the September 2021 VA examiner should have opined as to whether pain, repeated use, and/or flare-ups significantly limited the functional ability of the Veteran's left knee in terms of the degree of additional ROM loss as the Board specified in its remand directives. While the Court in Sharp recognized that a VA examiner cannot be compelled to provide an opinion where she cannot do so without resorting to mere speculation, it concluded that the examiner cannot do so without explaining the basis for this inability. Id. at 36. Here, no such explanation was offered by the September 2021 VA examiner. Additionally, the examiner incorrectly found that the record includes "no documentation of frequency or length of flare ups." Id. at pg. 3. The record does indeed include references to the duration of the Veteran's flare-ups. See, e.g., VA Knee Joint examination dated March 10, 2011 (Veteran endorsed flare-ups related to amount of time spent on his feet); VA Knee and Lower Leg examination dated January 18, 2012 (Veteran endorsed daily flare-ups lasting for hours). See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based upon an inaccurate factual premise has no probative value). For the foregoing reasons, the Board finds the September 7, 2021 VA medical opinion inadequate, which necessitates another remand for a VA advisory opinion. See Stegall, supra. Notwithstanding the foregoing, the Board finds probative the VA examiner's September 20, 2021 addendum opinion that the Veteran's own descriptions of his functional impairment during flare-ups may be relied upon to form a medical conclusion, as the addendum opinion is consistent with other evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As the issue of entitlement to a TDIU could be affected by the decision on the increased rating claim being remanded, these matters are inextricably intertwined and as such, the TDIU claim must be remanded as well. The matters are REMANDED for the following action: 1. Forward the Veteran's record to an appropriate clinician (OTHER THAN the VA examiners who authored the October 2020, April 2021, and September 2021 VA opinions) for review and an advisory medical opinion regarding the severity of the Veteran's left knee DJD. *The examiner's review of the body of this Remand is strongly recommended to assist in avoiding errors that have rendered previous VA opinions inadequate. After thorough review of the claims file, the examiner shall respond to the following regarding the Veteran's left knee DJD: (a) Furnish a retrospective opinion regarding the functional loss resulting from the Veteran's service-connected left knee DJD disability on repetitive use over time and during flare-ups. *The Veteran's own descriptions of his functional impairment during flare-ups may be relied upon to form a conclusion as previously determined by a VA examiner. (i) Note the frequency and duration of the flare-ups shown from October 2010 to the time of his death in March 2017 (this information is critical and must be obtained), and provide an estimate of the extent to which the left knee DJD limited the Veteran's functioning during flare-ups (from October 2010), as reflected by evidence of record (to include the reports of the March 2011 and January 2012 VA examinations), and including VA and private treatment records and supporting lay statements of the Veteran and his spouse (commenting whether the accounts are consistent with clinically recorded data). (ii) The determination should be portrayed in terms of the degree of additional range of motion loss due to pain on use or during a flare-up. (iii) If such cannot feasibly be described, or if an estimate of the additional impairment on repetitive use over time and/or during flare-ups cannot be provided based on the Veteran's reports and what is shown by clinical data in the record, there must be a full explanation why that is so. If further information is needed, identify the information that is not in the record but is necessary for the assessment sought. (b) Identify all periods when repetitive use over time and/or flare-ups affecting function were shown, and if at any point the examiner believes the Veteran's functional impairment worsened, there should be separate and distinct assessments for each period of worsening. The responses must include a complete rationale with clear conclusions and supporting data for each opinion provided. If a requested opinion cannot be provided without resort to mere speculation, it must be so stated, with explanation why the opinion would require mere speculation. The provider should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (no one could respond given the current state of medical science and the known facts) or by a deficiency in the record or the provider (additional facts are required-if so identify them, or the provider lacks the requisite knowledge or training). *If the examiner is unable to provide the requested opinion without resort 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 provider should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (no one could respond given the current state of medical science and the known facts) or by a deficiency in the record or the examiner (additional facts are required-if so identify them, or the examiner lacks the requisite knowledge or training). See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). 2. Thereafter, ensure that the examiner has substantially responded to the questions posed by the Board, and if not, take corrective action. 3. Then, readjudicate the remanded claims. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, 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.