Citation Nr: 21076118 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 17-04 481 DATE: December 22, 2021 REMANDED The issue of a rating in excess of 10 percent for patellofemoral syndrome with degenerative changes of the left knee is remanded. The issue of a rating in excess of 10 percent for patellofemoral syndrome with degenerative changes of the right knee is remanded. The issue of a rating in excess of 10 percent prior to February 17, 2017, and in excess of 20 percent thereafter, for instability of the left knee, is remanded. The issue of an initial rating in excess of 10 percent prior to February17, 2017, and in excess of 20 percent thereafter, for instability of the right knee, is remanded. The issue of a total disability rating based on individual unemployability (TDIU) prior to January 4, 2017, is remanded. REASONS FOR REMAND The Veteran had active service from May 1975 to April 1979, December 1990 to April 1991, and November 2004 to May 2006. 1. The issue of a rating in excess of 10 percent for patellofemoral syndrome with degenerative changes of the left knee is remanded. 2. The issue of a rating in excess of 10 percent for patellofemoral syndrome with degenerative changes of the right knee is remanded. 3. The issue of a rating in excess of 10 percent prior to February 17, 2017, and in excess of 20 percent thereafter, for instability of the left knee, is remanded. 4. The issue of an initial rating in excess of 10 percent prior to February 17, 2017, and in excess of 20 percent thereafter, for instability of the right knee, is remanded. In a February 2020 Order, the United States Court of Appeals for Veterans Claims (Court) granted a February 2020 Joint Motion for Partial Remand (JMPR). The JMPR stated that neither the July 2014 or the February 2017 VA examination reports provided measurements describing the degree of additional loss of range of motion the Veteran experienced with each knee due to pain and weakness. In September 2020, the Board of Veterans' Appeals (Board) remand explained an opinion addressing the deficiency identified in the February 2020 JMPR was necessary, and that the prospective examiner should note any further functional limitations due to pain, weakness, fatigue, lack of endurance, incoordination, or any other symptom resulting in functional loss. The resulting September 2021 VA examination report stated that the evidence suggested pain, weakness, and lack of endurance, significantly limited functional ability with repeated use over time. The September 2021 VA examiner estimated that the Veteran's range of motion immediately after repeated use over time would be 80 degrees of flexion with 10 degrees of extension for the right knee, and 75 degrees of flexion with 10 degrees of extension for the left knee. However, this estimated range of motion was identical to the initial range of motion measurements during the examination for each knee. Identical range of motion estimates for the Veteran's functional loss with repeated use over time for each knee, as compared to the initial range of motion measurements, is not indicative of any additional range of motion loss. Because the examiner identified identical range of motion estimates, rather than any additional limitations, with repeated use over time due to pain, weakness, and lack of endurance, a remand is necessary to identify any additional range of motion loss. Stegall v. West, 11 Vet. App. 268 (1998). Further, although the September 2021 VA examiner addressed whether pain, weakness, and/or lack of endurance significantly limited functional ability as of the date of the examination, no opinion was offered with respect to the earlier portion of the period on appeal. Because the record does not otherwise contain the data necessary to permit such an assessment, an additional opinion is necessary. See Chotta v. Peake, 22 Vet. App. 80 (2008) (when there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted). Finally, in light of the remand for matters discussed above, and as the record reflects the Veteran receives continuing treatment for his bilateral knee disability, updated VA treatment records, from September 2020 to the present, should be obtained and associated with the record. 5. The issue of a TDIU prior to January 4, 2017 is remanded. In its September 2020 Remand instructions, the Board directed the Agency of Original Jurisdiction obtain a VA opinion to determine the functional and occupational impact of all the Veteran's service-connected disabilities from May 21, 2014 to January 3, 2017. In this regard, entitlement to a TDIU has been raised as part and parcel of the Veteran's increased rating claims for his bilateral knee disabilities, received by VA on May 21, 2014. Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, the rating period for consideration, for entitlement to a TDIU, is from one year prior to the date of receipt of the claim for increase, if it is factually ascertainable that an increase warranting a TDIU occurred during that period. Pursuant to the September 2020 Board remand, the resulting September 2021 VA opinion stated that the Veteran was unable to perform sedentary work. To support this conclusion, the examiner referenced the Veteran's statements he provided "[o]n day of exam", and noted the "severe bilateral knee pain during range of motion exam." The examiner also referenced additional current observations. The September 2021 VA examination addressing the Veteran's knees was performed more than four years after the period identified in the prior Board remand instructions. The examiner did not directly discuss evidence related to the period prior to January 3, 2017, and did not specify if the opinion would apply for that time period. Because the examiner did not address the functional and occupational impact from the Veteran's service-connected disabilities prior to January 3, 2017, remand for another opinion is necessary. See Stegall, 11 Vet. App. at 271. The matters are REMANDED for the following actions: 1. Obtain any of the Veteran's updated VA treatment records from September 2020 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral knee disability. The clinician should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. (a.) The clinician must test and provide range of motion results for the Veteran's active motion, passive motion, including with pain, and on weight-bearing and without weight-bearing, for each knee. If providing any of these measurements is not possible, the clinician should so state. The clinician should also note any further functional limitations due to pain, weakness, fatigue, lack of endurance, incoordination, or any other symptom resulting in functional loss. (b.) The clinician must provide or estimate any functional loss due flare-ups, and on repeated use, in terms of additional range of motion loss for each knee. The Board is not permitted to accept a rationale that the clinician is unable to offer an opinion without resort to speculation based on an aversion to offering an opinion on issues not directly observed. The clinician must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and on repeated use. If it is not possible to provide a specific measurement, or an opinion regarding symptoms, or functional impairment during flare-ups, and on repeated use, without speculation, the clinician 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), or the clinician does not have the knowledge or training. (c.) Provide retrospective opinions, to the extent possible, for each knee, based on the July 2014 and February 2017 examination reports, in regard to an estimation as to the Veteran's range of motion, for each knee in degrees, for active motion and passive motion, with pain, and on weight-bearing and nonweight-bearing, due to pain and weakness. If retrospective opinions are not possible, the clinician must explain why (i.e., 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), or the clinician does not have the knowledge or training. 3. Obtain a VA opinion to determine the functional and occupational impact of all the Veteran's service-connected disabilities prior to January 3, 2017. If the Veteran is felt capable of work despite his service-connected disabilities, the clinician should describe the type of work, and what accommodations, would be necessary due to the service-connected disabilities. 4. After undertaking any other development deemed appropriate, readjudicate the issues on appeal. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. M. ESPINOZA Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, 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.