Citation Nr: 21009968 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 13-35 930 DATE: February 23, 2021 REMANDED Entitlement to a rating in excess of 10 percent for a right knee disability from July 26, 2009 to July 5, 2013 is remanded. Entitlement to a rating in excess of 30 percent for a right knee disability, status post total right knee (TKR) arthroplasty from September 1, 2014 to January 13, 2020 is remanded. Entitlement to a rating in excess of 60 percent for a right knee disability, status post total right knee (TKR) arthroplasty from January 13, 2020 is remanded. Entitlement to an evaluation in excess of 10 percent for degenerative joint disease and strain, left knee from July 26, 2009 to January 23, 2014 is remanded. Entitlement to an evaluation in excess of 30 percent for degenerative joint disease and strain, left knee from January 23, 2014 to May 19, 2016, and for a left total knee replacement from July 1, 2017 to January 12, 2020, and in excess of 60 percent from January 13, 2020 is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1978 to July 1981 -and October 1983 to October 2000. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). All claims were previously denied in a May 2018 Board decision. The Veteran appealed that Board decision to the United States Court of Appeals for Veterans Claims (Court). The Veteran and the Secretary of Veterans Affairs (the Parties) filed a Joint Motion for Remand (JMR) with the Court in June 2019. Later that same month, the Court issued an ORDER granting the Parties’ JMR and remanding the claim to the Board for action consistent with that JMR. The appeal is now before the Board again. The JMR set forth multiple grounds for sending the case back to the Board for additional development. First, the JMR indicates that the Board erred by failing to obtain an adequate medical opinion as to whether the Veteran suffered from additional functional loss or limitation of motion during flare-ups or after repeated use over a period of time during the relevant time period. Second, the JMR indicates that a remand is required because none of the VA examination reports contain the results of testing for pain on active and passive range of motion, in weightbearing and non-weightbearing situations. Third, the JMR contained the suggestion that the Board address whether a retrospective medical opinion was warranted as to the extent of additional functional loss or limitation of motion experienced during flare-ups of pain and in terms of active and passive range of motion, in weightbearing and non-weightbearing situations. Finally, the JMR indicated that further consideration was needed as to the application of 38 C.F.R. § 4.71a, Diagnostic Code 5055, specifically whether chronic residuals of severe painful motion or weakness in the affected extremity were present. Most recently, in October 2020, the Board remanded this appeal for development. The Board finds that there was not substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). 1. Entitlement to a rating in excess of 10 percent for a right knee disability from July 26, 2009 to July 5, 2013 is remanded. 2. Entitlement to a rating in excess of 30 percent for a right knee disability, status post total right knee (TKR) arthroplasty from September 1, 2014 to January 13, 2020 is remanded. 3. Entitlement to a rating in excess of 60 percent for a right knee disability, status post total right knee (TKR) arthroplasty from January 13, 2020 is remanded. 4. Entitlement to an evaluation in excess of 10 percent for degenerative joint disease and strain, left knee from July 26, 2009 to January 23, 2014 is remanded. 5. Entitlement to an evaluation in excess of 30 percent for degenerative joint disease and strain, left knee from January 23, 2014 to May 19, 2016, and from July 1, 2017, to Janaury 13, 2020, and rated 60 percent thereafter is remanded. As was previously noted in the August 2019 Board remand, the June 2019 JMR set forth multiple grounds for sending the case back to the Board for additional development. In relevant part, the JMR contained the suggestion that the Board address whether a retrospective medical opinion was warranted as to the extent of additional functional loss or limitation of motion experienced during flare-ups of pain and in terms of active and passive range of motion, in weightbearing and non-weightbearing situations. Consequently, the Board requested a VA examiner to “address in a retrospective opinion the extent of additional functional loss or limitation of motion experienced during flare-ups of pain and in terms of active and passive range of motion, in weightbearing and non-weightbearing, throughout the pendency of this appeal. If this cannot be determined, the examiner should explain why.” In January 2020, the Veteran underwent a VA examination for his knees. The examiner provided an addendum opinion in November 2020 that showed the Board’s request for a retrospective opinion. However, it is unclear which time periods the examiner is referring to in his opinion. Furthermore, the Board requested estimates of additional functional loss or limitation of motion experienced during flare-ups of pain and in terms of active and passive range of motion, in weightbearing and non-weightbearing situations for each period on appeal. Thus, the examiner should provide estimates for each VA examination from January 2010 through the present. The matters are REMANDED for the following action: 1. Return the claims file to the January/November 2020 VA examiner to obtain an addendum retrospective opinion. Specifically, the examiner should address in a retrospective opinion the extent of additional functional loss or limitation of motion experienced during flare-ups of pain and in terms of active and passive range of motion, in weightbearing and non-weightbearing, throughout the pendency of this appeal. If this cannot be determined, the examiner should provide an adequate rationale. The examiner must provide an opinion on all VA examinations from January 2010 through the present. The examiner is asked to consider all lay statements provided by the Veteran during the course of the VA examinations dated in August 2000, January 2010, September 2010, May 2011, January 2014, and January 2018. The opinion provided must be based on the totality of the evidence, to include the Veteran’s lay statements as to additional functional loss or limitation of motion experienced during flare-ups of pain and in terms of active and passive range of motion, in weightbearing and non-weight bearing. If this cannot be determined, the examiner should explain why in a fully informed rationale as to the inability to provide the requested opinion. 2. The AOJ must review this opinion to ensure it is adequate and complies with the Board’s specific remand directives herein. If deficient in any manner, corrective action must be taken at once. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that AOJ compliance with Board remand directives is not discretionary or optional). 3. Then, the Veteran’s claim must be readjudicated. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Quist, 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.