Citation Nr: 21009774 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 15-13 878 DATE: February 23, 2021 REMANDED Entitlement to an evaluation in excess of 10 percent for chondromalacia patella of the left knee is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1986 to January 1989. In August 2018, the Board, in pertinent part, remanded the issue of entitlement to an increased rating for the service-connected left knee disability on appeal for further development. In April 2020, the Board, again, remanded the issues on appeal for further development. 1. Entitlement to an evaluation in excess of 10 percent for chondromalacia patella of the left knee is remanded. In its April 2020 decision, the Board directed the agency of original jurisdiction (AOJ) to schedule the Veteran for an examination with an appropriate clinician to determine the current severity of his service-connected left knee disability as previous VA examinations of record were inadequate for claims purposes. The examiner was also asked to provide a retrospective opinion regarding whether the Veteran’s range of motion results from the January 2014, December 2019, and March 2020 VA examinations would have been reduced if tested in both active and passive motion and in weight-bearing and non-weight-bearing.. Additionally, the examiner was directed to determine at which point in the Veteran’s range of motion that pain started during these prior examinations, or explain why such measurements could not be provided. The Veteran underwent VA examination in September 2020, and VA obtained an addendum medical opinion in October 2020. In the October 2020 addendum opinion, the VA examiner provided a retrospective opinion regarding the prior VA examinations range of motion results in both active and passive motion and in weight-bearing and non-weight-bearing, as well as an adequate rationale to support the opinion. However, the examiner did not offer a retrospective opinion regarding at which point in the Veteran’s range of motion that pain began in these prior VA examinations nor did he provide an explanation as to why such measurements could not be provided. Also, in its April 2020 decision, the Board directed that the examining VA physician or specialist provide information to demonstrate that they were qualified to offer the requested opinions (such as a curriculum vitae or similar demonstrable documentation (which could be redacted as deemed warranted)). The requested information for K.D., who conducted the September 2020 VA examination, nor Dr. D.D.H., who provided the October 2020 medical opinion, has not been associated with the claims file. The Veteran has a right, as a matter of law, to compliance with remand instructions, and the Board has a duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, the Board finds that remand is warranted so that a retrospective opinion may be obtained regarding at which point in the Veteran’s range of motion that pain started during the January 2014, December 2019, and March 2020 VA examinations. Also, on remand, the AOJ should obtain information to demonstrate that K.D. and Dr. D.D.H., as well as any other VA examiner who provides an opinion based upon this decision’s directives, were qualified to offer the requested opinions. This information should be associated with the Veteran’s claims file. 2. Entitlement to a TDIU. Finally, because a decision on the remanded issue of an increased evaluation for the Veteran’s left knee disability could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim for is required. The matters are REMANDED for the following action: 1. Obtain a retrospective medical opinion from the October 2020 VA examiner (Dr. D.D.H.), or another appropriate clinician if he is unavailable, regarding the range of motion results from the January 2014, December 2019, and March 2020 VA examinations. Specifically, the examiner is asked to provide a retrospective opinion as to which point in the Veteran’s range of motion that pain began. If the examiner is unable to provide this retrospective opinion, he/she should explain why such opinion cannot be provided and whether the inability is due to the limits of medical community or the limits of the examiner’s medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. 2. Obtain information to demonstrate that K.D. and Dr. D.D.H. (and any other VA examiner who provides an opinion based upon the directives contained herein) are qualified to offer the above requested opinion (such as a curriculum vitae or similar demonstrable documentation (which may be redacted as deemed warranted)). This information is to be associated with the Veteran’s claims file. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Mike Sobiecki Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Bristow Williams, 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.