Citation Nr: 21009890 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 09-23 538 DATE: February 23, 2021 REMANDED Entitlement to a rating in excess of 10 percent for patellofemoral syndrome of the left knee prior to July 10, 2018, is remanded. Entitlement to a rating in excess of 10 percent for patellofemoral syndrome of the right knee prior to June 26, 2017, is remanded. Entitlement to a rating in excess of 10 percent for left knee instability prior to July 10, 2018, is remanded. Entitlement to a rating in excess of 10 percent for right knee instability prior to June 26, 2017, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from September 11, 2007, to September 4, 2008, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1982 to June 1997. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In June 2014, June 2015, and June 2017, the Board remanded these claims to the Agency of Original Jurisdiction for additional action In April 2019, the Board denied entitlement these claims. The Veteran appealed to the United States Court of Appeals for Veterans Claims. In April 2020, the Court granted the Parties’ Joint Motion for Partial Remand, vacated the April 2019 Board decision that denied the Veteran’s claims, and remanded the matter to the Board for additional action consistent with the Joint Motion for Remand. Subsequently, in September 2020, the Board remanded these claims to the Agency of Original Jurisdiction for additional action. 1. Entitlement to a rating in excess of 10 percent for patellofemoral syndrome of the left knee prior to July 10, 2018, is remanded. 2. Entitlement to a rating in excess of 10 percent for patellofemoral syndrome of the right knee prior to June 26, 2017, is remanded. 3. Entitlement to a rating in excess of 10 percent for left knee instability prior to July 10, 2018, is remanded. 4. Entitlement to a rating in excess of 10 percent for right knee instability prior to June 26, 2017, is remanded. The Veteran was assigned a 10 percent rating for patellofemoral syndrome of the left knee with degenerative changes prior to July 10, 2018, pursuant to Diagnostic Code 5010-5260. The Veteran was assigned a 10 percent rating for patellofemoral syndrome of the right knee with degenerative changes prior to June 26, 2017, pursuant to Diagnostic Code 5010-5260. The Veteran contends that she is entitled to a higher rating for patellofemoral syndrome of the right and left knees with degenerative changes. The appeal period before the Board begins on September 11, 2007, the date VA received the Veteran’s claim for an increased rating, plus the one period prior. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). As an initial matter, the Board notes that the Veteran underwent VA knee examination February 2016 and October 2017. However, previous decisions of the Board and the Court have found those examinations to be inadequate for rating purposes. Therefore, neither the February 2016, nor the October 2017 VA knee examination reports will be considered in adjudication of this claim. Pursuant to the April 2020 Joint Motion for Partial Remand, in September 2020, the Board remanded these claims to the Agency of Original Jurisdiction for an examination that complied with the requirements of Sharp v. Shulkin, 29 Vet. App. 26 (2017). As the level of each respective disability for the periods prior to June 26, 2017, and July 10, 2018, was of primary concern, the VA examiner was instructed to provide a retrospective medical opinion with respect to the severity of each disability. Chotta v. Peake, 22 Vet. App. 80 (2008); Vigil v. Peake, 22 Vet. App. 63 (2008). Subsequently, during VA examination in November 2020, the examiner was asked to give a retrospective opinion regarding the severity of the left knee disability prior to July 10, 2018, and right knee disability prior to June 26, 2017. The November 2020 VA examiner stated, with regard to a retrospective opinion regarding the severity of the left knee condition prior to July 10, 2018, and the left knee disability prior to June 26, 2017, that the examiner was unable to provide a specific detail the Board was requesting, such as instability, range of motion with and without weight-bearing, and frequency of flare ups, without resorting to speculation. The examiner did not examine the Veteran's knee disabilities after 2013 and just prior to July 10, 2018. Review of medical records showed the evaluation by VA examiners on February 29, 2016, and October 4, 2017, showing the clinical findings during the physical examinations. The Veteran was seen by a VA orthopedic specialist, noting the Veteran's description of the disability related to the knees due to pain. The physical examination mentioned instability of left knee, but not the right knee. The examination noted endstage osteoarthritis of both knees and the severity of pain as 9/10. The examiner stated that it was impossible for the examiner to provide the range of motion measurements retrospectively other than the clinical findings provided by the VA examiner. The Board’s September 2020 remand requested a retrospective medical opinion be acquired, that explicitly addressed the severity of level of the knee disabilities. The Court decision noted explicitly that the previous examinations and medical opinions, to include the October 2017 VA examiner’s opinion, were incomplete, as they did not adhere to the requirements of discussing any flare-ups of the service-connected knee disabilities. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Therefore, the Board’s remand requests explicitly noted that any examination report must retroactively address those concerns. A review of the November 2020 VA examination and opinion shows that the VA examiner did not comply with the Board’s remand requests, and the report did not retrospectively address the severity of level of the knee disabilities, to include retrospective range of motion findings for the knee disabilities. Importantly, insofar as the examiner tried to address her inability to retrospectively address the severity of level of the Veteran’s knee disabilities without resorting to speculation, the examiner based the rationale on VA examinations from October 2017 and February 2016 which have previously been found by the Board and Court to be inadequate for rating purposes. Therefore, the Board finds that there has not been substantial compliance with the remand. Consequently, the Board cannot consider the development requested to be substantially accomplished, and the claims must be remanded to complete the requests in the September 2020 Board remand. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran is notified that it is her responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. § 3.655. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from September 11, 2007, to September 4, 2008, is remanded. As the claim for a TDIU is inextricably intertwined with the increased rating claims on appeal, adjudication of this issue must be deferred. Harris v. Derwinski, 1 Vet. App. 180 (1991) The matters are REMANDED for the following action: 1. Obtain all pertinent VA medical records, not yet associated with the claims file, and associate them with the claims file. 2. Schedule the Veteran for a VA examination with a medical doctor who has not previously examined the Veteran in conjunction with these claim. Request a retrospective medical opinion regarding the severity of the Veteran’s service-connected left knee patellofemoral pain syndrome and instability prior to July 10, 2018; and the Veteran’s service-connected right knee patellofemoral pain syndrome and instability prior to June 26, 2017. The examiner must review the claims file, to include this Remand, the September 2020 Board Remand, and the April 2020 Joint Motion for Partial Remand, and should note that review in the report. Any studies or tests deemed necessary should be performed. The examiner should provide a complete rationale for any opinions provided. The examiner is asked to provide retrospective medical opinion regarding the severity of left knee patellofemoral pain syndrome and instability from September 11, 2007, to July 10, 2018; and right knee patellofemoral pain syndrome and instability from September 11, 2007, to June 26, 2017. The examination report must include range of motion testing expressed in degrees for active motion, passive motion, weight-bearing, and nonweight-bearing for both knees. The examination report must also include range of motion testing after repetitive use and explicitly state whether the Veteran has ankylosis of either knee. The examiner is specifically asked to describe any functional limitation due to painful movement, weakened movement, excess movement, fatigability, incoordination, or on flare-up. The examiner should discuss the likely limitation of motion due to pain and any other factors, or on flareup during the period requested. The Veteran has described flare-ups of pain. The examiner should offer an opinion as to whether there was additional limitation of functional ability during flare-ups. The examiner should also express an opinion concerning whether there was additional functional impairment on repeated use or during flare-ups assessed in terms of the degree of additional range of motion loss. Based on relevant information elicited from the Veteran, review of the file, and the examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding 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. The examiner should not refer to VA examination from October 2017 or February 2016 in the examination report, as those examinations have been found inadequate. While those examinations contain range of motion findings, they did not measure active motion, passive motion, weight-bearing motion, nonweight-bearing motion, or provide information regarding any additional function loss due to flare-ups, painful motion, or other factors. The purpose of this examination is to attempt to reconstruct that information based on available evidence, to include lay statements from the Veteran. The Board recognizes the difficulty in making such determinations but requests that the examiner provide a best estimate based on the examination findings and statements of the Veteran. To the extent possible, the examiner should identify any symptoms and functional impairments due to the knee disabilities alone and discuss the effect of the knee disabilities on any occupational functioning and activities of daily living. The examiner should state the severity of any recurrent subluxation or lateral instability during the periods in question based on evidence of record and statements from the Veteran. The examiner should also state whether there was any meniscal pathology or past surgery of the knees and should describe any symptoms due to meniscal pathology. Specific to instability, the examiner is requested to elicit from the Veteran a complete description of the instability experienced in daily life prior to July 10, 2018, and June 26, 2017, respectively. The examiner should provide an opinion as to whether that reported instability is consistent with the objective manifestations found on examination. The examiner is advised that the Veteran is competent to report symptoms and history, and those reports must be specifically acknowledged and considered in formulating an assessment as to the level of disability in each knee. The examiner is also asked to comment on the impact of the service-connected disabilities on employment and activities of daily life. The examiner should opine whether it was at least as likely as not (50 percent or greater probability) that the Veteran was unable to secure or follow a substantially gainful occupation due to the service-connected disabilities, which was consistent with education and training, from September 11, 2007, to September 4, 2008. If the Veteran is found to have been capable of work despite the service-connected disabilities during that period, the examiner should state what type of work and what accommodations would have been necessary due to the service-connected disabilities. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mondesir, Eric 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.