Citation Nr: 21076596 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 18-34 291 DATE: December 27, 2021 REMANDED Entitlement to an initial disability rating in excess of 10 percent for patellofemoral syndrome of the left knee is remanded. Entitlement to an initial disability rating in excess of 10 percent for patellofemoral syndrome of the right knee is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from December 2004 to December 2008. In January 2020, the Board of Veterans' Appeals (Board) issued a decision partially granting and partially denying the appeal for higher initial disability ratings for left knee and right knee disabilities. Specifically, the Board granted an initial 10 percent disability rating for patellofemoral syndrome of the left and right knees, effective December 14, 2008. The Board then denied the issues of entitlement to an initial rating in excess of 10 percent for the left and right knee disabilities. The Board also remanded the issue of entitlement to a TDIU. In January 2021, the Court of Appeals for Veterans Claims (Court), granted a Joint Motion for Partial Remand (JMPR) that vacated and remanded the January 2020 Board decision insofar as it denied entitlement to an initial rating in excess of 10 percent for the left knee and right knee disabilities. Per the JMPR, the issues of entitlement to initial disability ratings in excess of 10 percent for the Veteran's left and right knee disabilities were returned to the Board for additional adjudication. In a May 2021 Board decision, the issue of entitlement to a TDIU was properly merged with these issues under docket number 18-34 291. The May 2021 Board decision then remanded the issues on appeal for further development. Unfortunately, for the reasons discussed below, the Board finds remand for additional development is necessary. As such, the Board need not further discuss remand compliance at this time. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to an initial disability rating in excess of 10 percent for patellofemoral syndrome of the left knee is remanded. 2. Entitlement to an initial disability rating in excess of 10 percent for patellofemoral syndrome of the right knee is remanded. The Veteran asserts that the initial disability ratings for the left and right knee disabilities do not accurately reflect the severity of the conditions. The Veteran underwent a VA examination in April 2015 in which the Veteran reported flare-ups resulting in stiffness and decreased mobility. However, the examiner was unable to describe any additional functional loss during flare-ups or due to pain in terms of motion. As a result, the May 2021 Board decision found the April 2015 VA examination inadequate and remanded the issues for a retrospective medical opinion. The Veteran was provided an additional VA examination in June 2021. The examiner was asked to provide a retrospective opinion based on the April 2015 VA examination regarding the left and right knee conditions. The examiner should have provided ranges of motion at the time of the April 2015 VA examination in active and passive motion, with weight-bearing and non-weight-bearing, and after repetitive use. The examiner was also asked to provide an opinion regarding the severity, frequency, and duration of flare-ups, name the precipitating and alleviating factors, and estimate, per the Veteran, to what extent, if any, such flare ups affect functional impairment, including estimated ranges of motion. The examiner failed to provide any additional range of motion measurements during a flare-up based on the April 2015 VA examination. The examiner also did not discuss the severity, frequency, or duration of the Veteran's flare-ups as reported during the April 2015 VA examination. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issues of a rating in excess of 10 percent for patellofemoral syndrome of the left and right knee. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, in reference to the current severity of the Veteran's knee conditions, the June 2021 examiner noted that the Veteran had "progressing pain in both knees." However, the examiner then noted during range of motion testing that the Veteran was no exhibiting pain. Clarification regarding the Veteran's currently experienced pain is required. 3. Entitlement to a TDIU is remanded. Given the remanded issues of entitlement to an initial disability rating in excess of 10 percent for patellofemoral syndrome of the left and right knees, the Board finds the issue of entitlement to a TDIU to be inextricably intertwined with these remanded issues. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Therefore, a final decision on the issue cannot be rendered at this time. Id. The matters are REMANDED for the following action: 1. Provide the Veteran with an additional VA examination with an examiner distinct from the June 2021 examiner to determine the severity of the left and right knee patellofemoral syndrome. Obtain addendum retrospective opinions based on the April 2015 VA examination regarding the left and right knees. The Veteran's claims folder should be provided to the reviewer prior to the completion of the opinion. The examiner shall provide a retrospective opinion based on the April 2015 examination regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups; name the precipitating and alleviating factors; and estimate, per the Veteran, to what extent, if any, such flare-ups affect functional impairment, including estimated ranges of motion. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. (Continued on the next page) If it is not possible to provide 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), or the examiner (does not have the knowledge or training). E. BLOWERS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, S. Conti 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.