Citation Nr: 21006655 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 12-26 405 DATE: February 4, 2021 REMANDED Entitlement to an increased rating in excess of 10 percent for a left knee disability is remanded. Entitlement to service connection for a right knee disability to include as secondary to service-connected left knee disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1979 to December 1984. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2016, the Veteran testified before the undersigned Veterans Law Judge during a Board video conference hearing. These matters were previously before the Board in September 2016. However, the Board remanded the Veteran’s claims for further development of the record and to afford the Veteran a VA examination to properly evaluate the Veteran’s left knee disability and to determine the etiology of the right knee disability. His claims were again denied in a February 2019 and October 2020 supplemental statement of the case (SSOC). As such, these matters are again before the Board for adjudication. Unfortunately, the Board finds that additional remand is necessary before the Board can properly adjudicate the Veteran’s claims. 1. Increased rating for left knee disability The Veteran seeks an increased rating in excess of 10 percent for his left knee disability. During the period on appeal the Veteran reported that he experiences pain and joint pain from squatting, kneeling, standing, going up ladders/stairs. See April 2016 Board Hearing. He also has difficulty getting up in the morning and uses heat to loosen up his knee joints in the morning. Id. He also reported instability of his knees and wears knee braces. He also reported that his knees swell depending on the activities he performs. Id. When the Secretary undertakes to provide a veteran with a VA medical examination or opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A VA joints examination that fails to take into account the factors listed in §§ 4.40 and 4.45, including those experienced during flare-ups or on repeated use over time, is inadequate for evaluation purposes. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). For an examination not conducted during a flare-up or after repeated use over time to comply with DeLuca, the examiner must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veteran, and offer an opinion based on an estimate derived from information procured from relevant sources, including the lay statements of the veteran. Sharp v. Shulkin, 29 Vet. App. 26, 34-35 (2017). The examiner’s determination in that regard should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss. DeLuca, 8 Vet. App. at 206. When an examiner states that he or she cannot offer an opinion without resort to speculation, that opinion is adequate only when it is clear that it is predicated on a lack of knowledge among the medical community at large and not the insufficient knowledge of the specific examiner. Sharp, 29 Vet. App. at 36 (quoting Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)). The Board notes that the Veteran was provided with a VA examination in December 2009 and September 2017. However, in a September 2016 remand, the Board observes that the December 2009 VA examination did not provide the clinical findings necessary to make an informed decision on his increased rating claim. Upon remand, the Veteran was provided with a VA examination in September 2017. He reported pain of mild to moderate severity and sharp pain on walking. He also reported difficulty with walking and going up stairs and that his knees locks up about one to two times a day when he tries to get up from a squatting position. With regards to being examined upon repetitive use over time, the VA examiner endorsed that she was unable to say without resorting to mere speculation as to whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time. The VA examiner was also unable to explain in terms of additional loss in range of motion. However, the VA examiner did not provide a detailed explanation for her responses. The VA examiner merely stated that it would be resorting to mere speculation to provide an opinion on those matters. The VA examiner’s rationale for her inability to express an opinion is inadequate and do not comply with the requirements under Sharp. The Board further observes that the September 2017 VA examination does not comply with the holdings under Correia. While the September 2017 VA examiner noted pain on weight bearing, it does not appear that the Veteran was tested in active, passive, or non-weight bearing modes. The September 2017 VA examination further does not comply with the holdings under Sharp. The Veteran testified that he experiences swelling of the left knee and his VA treatment records further reflects complaints of a painful and swollen left knee. However, it does not appear that the VA examiner attempted to elicit information regarding the severity, frequency, duration, and functional loss during flare-ups before determining that additional range of motion loss due to flare-ups cannot be estimated. Thus, the Board finds that a remand is warranted to obtain a VA examination consistent with the holdings under Deluca, Correia, and Sharp. The Board notes that the Veteran was scheduled for a VA examination for his service-connected left knee disability in November 2019. However, the Veteran failed to show up to that VA examination and good cause has not been shown. Generally, when a veteran fails to assist the VA in developing his claim without showing good cause, the Board will adjudicate the claims based on the evidence of record. However, as there is no adequate examination upon which the Board may adjudicate the Veteran’s claim, the Board must remand the claim to obtain an adequate VA examination. In this regard, the Veteran is reminded that the duty to assist is not a one-way street and that he has a duty to cooperate in the development of the pending claims. 38 C.F.R. §§ 3.326, 3.327, 3.655(b), see also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). 2. Service connection for a right knee disability as secondary to service-connected left knee disability The Board also finds that a remand is warranted to obtain an adequate medical opinion for the Veteran’s right knee disability. The Veteran asserts that he primarily used his right leg to support, balance, climb, and walk after his left knee surgery. He was provided with a VA examination in December 2009 for his bilateral knee disability, but no medical opinion was provided for his right knee disability. Following the September 2016 Board remand, a September 2017 VA examiner rendered a negative opinion against the Veteran’s claim. However, the Board finds that the September 2017 VA medical opinion is inadequate for adjudication purposes. First, the September 2017 VA examiner’s opinion is merely based on the absence of in-service treatment for a right knee condition and continuous treatment of a right knee condition since the Veteran’s military service and December 1982 left knee ACL reconstructive surgery. Second, while the VA examiner stated that symptoms of his right knee disability did not occur until 2006, it does not appear that the VA examiner considered the Veteran’s March 2002 VA treatment note indicating that shifting his weight to the right leg caused degeneration of the right knee as well. Third, the VA examiner’s statement that the current medical literature does not confirm development of degenerative joint disease of the knee as secondary to the opposite knee is merely conclusory. Aside from that reference to medical literature, there was no explanation on whether the Veteran’s right knee disability was proximately due to or aggravated by his service-connected left knee disability. Subsequently, in August 2018, the September 2017 VA examiner was requested to provide an addendum medical opinion to clarify her previous medical opinion and to specifically address the Veteran’s March 2002 VA treatment note indicating a causal relationship between his knees. However, in an August 2018 VA addendum opinion, the VA examiner maintained her previous opinion and failed to provide any clarifications as requested. Accordingly, as there is no adequate medical opinion on which the Board can adjudicate the Veteran’s claim on, this matter must be further remanded to obtain a medical opinion. Upon remanding this claim for another VA examination, the Veteran is again reminded that the duty to assist is not one-way street and that he has a duty to cooperate with the VA and facilitate needed development. 38 C.F.R. §§ 3.326, 3.327, 3.655(b), see also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). 3. TDIU Concerning entitlement to TDIU, the Board finds that any determinations with respect to the remanded claims would materially affect a determination concerning TDIU. As such, it is inextricably intertwined with the increased rating claim being remanded and must therefore be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. Obtain any outstanding VA or private treatment records related to the Veteran’s left and right knee disabilities and associate them with the claims file. 2. Schedule the Veteran for an VA examination with a different examiner to determine the current severity of his service-connected left knee disability and the etiology of his right knee disability as secondary to his service-connected left knee disability. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail, including ranges of motion of the knees and the degree at which pain begins. Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), the examination should record the results of range of motion testing for pain on active and passive motion AND in weight-bearing and nonweight-bearing of BOTH knees. If the knees cannot be tested on “weight-bearing,” then the examiner must specifically indicate that such testing cannot be done. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups assessed in terms of the degree of additional range of motion loss. Regarding flare-ups, if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flare-ups, the examiner is requested to provide an estimate of the Veteran’s functional loss due to flare-ups expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. 3. Pertaining to the etiology of the Veteran’s right knee disability, the examiner is requested to provide a medical opinion for the following: a) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s right knee disability is proximately caused or aggravated by his service-connected left knee disability? A complete and detailed rationale for these opinions should be provided for every opinion requested by the examiner. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Xiong, 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.