Citation Nr: 21007525 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 11-00 594 DATE: February 9, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for a right knee condition, to include degenerative joint disease is remanded. Entitlement to an initial rating in excess of 10 percent for a left knee condition, to include degenerative joint disease is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from August 1989 to September 2009. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter has been before the Board and Court of Appeals for Veterans Claims (Court) multiple times. Most recently, in February 2019, the Board remanded the case for development of additional medical records pertaining to knee surgeries, a new VA examination, and a new opinion to the Veteran's loss of function of his knees for the period at issue. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 1 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Here, the December 2019 VA examination did not comply with the February 2019 remand instructions, as discussed below. As such, another remand is warranted. In its February 2019 decision, the Board determined that a retrospective opinion was necessary to attempt to obtain information required by the Court’s holdings in Correia v. McDonald, 28 Vet. App. 158 (2016) and in Sharp v. Shulkin, 29 Vet. App. 26 (2017) in order to adjudicate the Veteran’s claims for entitlement to increased initial rating for bilateral degenerative joint disease. The Veteran attended a VA knee examination in December 2019 with a contract examiner. However, the VA contract examiner did not indicate whether the examination was being conducted during a flare-up or estimate his functional loss in terms of range of motion during flare-ups prior to his April 2018 right knee replacements. The examiner also did not specifically address or reconcile the previous VA examinations identified in the remand instructions. Retrospective opinions must be obtained to comply with the Board’s prior remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, in the February 2019 order, the Board directed the RO to work with the Veteran to obtain records of his 2012 and 2017 surgeries as well as any private treatment records. In September 2019, VA sent the Veteran a letter requesting that he submit the names and contact information of treatment providers related to his 2012 and 2017 right surgical knee procedures, as specified in the remand directive. There appears to have been some confusion caused by the phrasing of the remand directive, and the record indicates that there are additional relevant private surgical and treatment records that have not been requested. Consequently, additional development is required. Consequently, a remand to obtain private treatment records and an addendum medical opinion regarding the Veteran’s functioning over the period from October 2009 through the present time is required. The matters are REMANDED for the following action: 1. Associate updated VA records with the claims file. 2. Contact the Veteran and request properly executed releases for any private care providers who have treated him for his knee conditions. Records from Derek Farr, DO, and Twin Palms Orthopedics, should be specifically requested. The Veteran should be specifically asked for releases regarding right knee arthroscopic surgery in 2012 and June 2017 and the name and/or practice name and contact information of the surgeon(s) who performed the surgery. Upon receipt of such, VA must take appropriate action to contact the identified providers and request complete treatment records. The Veteran should be informed that in the alternative he may obtain and submit the records himself. 3. Obtain a retrospective medical opinion from an appropriate clinician regarding the severity of the Veteran's service-connected bilateral knee disabilities. The claims file must be made available for the reviewer. The reviewer should review the entire claims file, especially the February 2010, April 2014 and September 2016 VA examination reports of record together with all other evidence pertaining to the severity of the Veteran's right and left knee disabilities for the period since October 2009. The need for a new physical examination is at the discretion of the reviewer. The reviewer will provide a retrospective opinion that estimates the ranges of motion of the Veteran’s right and left knees in active motion, passive motion, weightbearing, non-weightbearing (including accounting for functional impairment due to pain) and the additional functional impairment on repeated use or during flare-ups, at each time the Veteran's knees were examined with range of motion testing for rating purposes. If an such an opinion cannot be provided, the reviewer should provide an explanation as to why this is so and not what, if any, additional evidence would permit such an opinion to be provided. The reviewer need not consider the period from April 10, 2018 through June 1, 2019. If the reviewer cannot report the degree of additional range of motion loss during a flare-up or repeated use over time without speculation, the reviewer 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 particular characteristics of the reviewer (does not have the knowledge or training). A full and complete rationale for all opinions expressed is required. 4. After the above has been completed, readjudicate the claims on appeal. If any benefit sought remains denied, issue an appropriate supplemental statement of the case and return the appeal to the Board WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Megan-Brady Viccellio 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.