Citation Nr: 21076237 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 13-31 611 DATE: December 22, 2021 REMANDED Entitlement to an increased rating in excess of 20 percent for degenerative joint disease of the left knee is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1996 until August 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2018, the Board granted entitlement to an increased rating of 20 percent, but no higher, for the Veteran's left knee disability. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In June 2019, the Court granted a Joint Motion for Partial Remand (JMPR) vacating the denial of entitlement to separate disability rating(s) under different Diagnostic Codes and remanded the matter for further consideration. In November 2019, the Board denied entitlement to a disability rating greater than 20 percent for degenerative joint disease of the left knee. The Veteran again appealed the decision to the Court. In January 2021, the Court granted a JMPR, vacating the denial and remanding the matter for further consideration. In June 2021, the Board remanded the issue in order to provide the Veteran with an additional VA examination to determine the severity of his left knee disability. In addition, a retrospective opinion was to be obtained. Unfortunately, the Board regrets the additional delay, but finds the June 2021 remand directives have no been substantially complied with, thereby necessitating an additional remand. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to an increased rating in excess of 20 percent for degenerative joint disease of the left knee is remanded. After a review of the evidence of record, the Board finds that another remand is necessary prior to adjudicating this claim to correct a duty to assist error and remedy a failure to comply with the Board's June 2021 remand. Stegall, 11 Vet. App. at 271. In the Board's most recent remand, the Board instructed that, on remand, a retrospective opinion regarding the frequency, duration, characteristics, severity, or functional loss with any repetitive use or during any flare-ups of the Veteran's left knee at the time of the June 2009 VA examination, April 2012, VA examination, and September 2016 VA examination. A medical opinion was obtained in August 2021 to address these contentions, however, the examiner failed to address the Board's remand directives by providing a retrospective opinion. The examiner discussed that the Veteran had "full flexion in November 2008, flexion to 90 degrees in June 2009, flexion to 165 degrees in March 2010, flexion to 120 degrees in April 2012, flexion to 135 degrees in February 2013, flexion to 130 degrees in September 2016, and flexion to 100 degrees in September 2016." That is the limit of the examiner's opinion and rationale. There is no discussion regarding frequency, duration, characteristics, severity, or functional loss with any repetitive use or during any flare-ups of the Veteran's left knee at the time of the previous VA examinations as directed previously by the Board. The Court has explained that the Board errs when it relies on examination reports in which the examiner failed to address functional loss regularly, during flare-ups, and with repeated use over time. Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017); Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). As such, the Board's June 2021 remand instructions have not been substantially complied with, and, as such, an additional remand is necessary in order to obtain an addendum opinion. The matters are REMANDED for the following action: 1. Per the January 2021 JMPR, obtain an addendum opinion from a different medical examiner and opine to the following: (a.) Utilize the Veteran's medical records and lay reports concerning the history of his left knee symptoms and impairment to provide a RETROSPECTIVE OPINION regarding the frequency, duration, characteristics, severity, or functional loss with any repetitive use or during any flare-ups of the Veteran's left knee disability at the time of the June 2009 VA examination, April 2012 VA examination, and September 2016 VA examination. Any impairment should be assessed in terms of limitation to ROM, including on (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in non-weight-bearing. (b.) Specifically, the examiner should, to the extent possible and considering all procurable and ascertainable data, provide estimates of: (i.) The additional functional loss to the Veteran's left knee from flare-ups or after repeated use over time at the time of the June 2009 VA examination, April 2012 VA examination, and September 2016 VA examination. Any additional limitation due to repetitive use over time or flare-ups should be assessed in terms of the degree of additional ROM loss. The Board emphasizes that, in providing the requested retrospective opinion, the examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of ROM, including the effective the Veteran's disability on any occupational functioning and activities of daily living. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. In this regard, the Board emphasizes the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. All examination findings, along with the complete explanation for all opinions expressed, must be set forth in the examination report. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must provide a rationale for this conclusion. The examiner must include a discussion of any specific facts that cannot be determined and 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 examiner (does not have the knowledge or training). 2. Because the claim has been pending since May 2009, the examiner should be provided with copies of all rating criteria and the examiner should provide adequate information for the VA to rate the disability, with careful attention to rating criteria in [Historical] 4.71a Schedule of Ratings Musculoskeletal System (before February 7, 2021). 3. Following completion of the above directive, review the claims file to ensure compliance with this remand. If any examination report does not include adequate responses to the specific opinions requested, it must be returned to the examiner for corrective action. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. DeBoer, 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.