Citation Nr: 21010578 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 14-09 595 DATE: February 25, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for service-connected degenerative arthritis with capsulitis and chondromalacia patella of the left knee prior to November 20, 2019, including extraschedular consideration is remanded. Entitlement to a disability rating in excess of 20 percent for limitation of extension of the left knee prior to November 20, 2019 is remanded. Entitlement to a compensable disability rating for limitation of flexion of the left knee prior to November 20, 2019 is remanded. Entitlement to a disability rating in excess of 30 percent for service-connected left total knee replacement (previously rated as degenerative arthritis with capsulitis and chondromalacia patella of the left knee) for the period from January 1, 2021 is remanded. Entitlement to a disability rating in excess of 10 percent for service-connected degenerative arthritis with capsulitis and chondromalacia patella of the right knee for the period, including extraschedular consideration, prior to January 10, 2020 is remanded. Entitlement to a disability rating in excess of 10 percent for limitation of extension of the right knee prior to January 10, 2020 is remanded. Entitlement to a disability rating in excess of 20 percent for limitation of extension of the right knee from January 10, 2020 is remanded. Entitlement to a disability rating in excess of 30 percent for limitation of flexion of the right knee from January 10, 2020 is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1960 to July 1964. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from the May 2012, December 2018, July 2020, and January 2020 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge in May 2017. A transcript of the hearing is of record. In September 2017, the Bard remanded the issues on appeal for additional development. Most recently, in February 2019, the Board remanded the issues on appeal for additional development. The Board finds that the Regional Office (RO) substantially complied with the Board’s remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Regrettably, more development is still necessary for the Veteran’s claims of entitlement to an increased rating for his bilateral knee disabilities. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 10 percent for service-connected degenerative arthritis with capsulitis and chondromalacia patella of the left knee prior to November 20, 2019, including extraschedular consideration 2. Entitlement to a disability rating in excess of 20 percent for limitation of extension of the left knee prior to November 20, 2019 3. Entitlement to a compensable disability rating for limitation of flexion of the left knee prior to November 20, 2019 4. Entitlement to a disability rating in excess of 30 percent for service-connected left total knee replacement (previously rated as degenerative arthritis with capsulitis and chondromalacia patella of the left knee) for the period from January 1, 2021 5. Entitlement to a disability rating in excess of 10 percent for service-connected degenerative arthritis with capsulitis and chondromalacia patella of the right knee, including extraschedular consideration for the period prior to January 10, 2020 6. Entitlement to a disability rating in excess of 10 percent for limitation of extension of the right knee prior to January 10, 2020 7. Entitlement to a disability rating in excess of 20 percent for limitation of extension of the right knee from January 10, 2020 8. Entitlement to a disability rating in excess of 30 percent for limitation of flexion of the right knee from January 10, 2020 The Veteran is seeking a higher rating for his bilateral knee condition. The VA has the duty to make reasonable efforts to assist a claimant in securing evidence necessary to substantiate their claim for VA benefits. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The duty to assist was not met when the VA failed to obtain an adequate VA examination for the Veteran’s bilateral knee disability. The case law is clear that once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, he must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In November 2017, the Veteran was afforded a VA examination for his bilateral knee conditions. The Veteran’s range of motion in his right knee was extension to 10 degrees, and flexion to 70 degrees. The Veteran’s range of motion in his left knee was extension to 15 degrees, and flexion to 70 degrees. The examiner noted that range-of-motion measurements were not performed for repetitive use testing because the Veteran indicated it was too painful. The examiner declined to state whether the Veteran would experience additional functional loss during flare-ups and on repetitive use over time. This examination was inadequate because the examiner did not address flare-ups, passive testing, or nonweight-bearing. In February 2019, the Board remanded this matter for more development. Since the November 2017 examination, both VA treatment records and lay statements suggest that the Veteran’s bilateral knee conditions may have gotten worse. Specifically, an October 2018 VA treatment record showed that the Veteran’s tricompartment osteoarthritis in both knees was moderate to severe. This is compared to the November 2017 VA examination which referred to an October 2017 x-ray which showed moderate tricompartmental osteoarthritis. In January 2020, the Veteran was afforded a VA examination for his bilateral knee condition. However, this examination was performed approximately two months after the Veteran had a total left knee replacement. Thus, an addendum retrospective opinion is required to determine the estimated severity of the Veteran’s left knee condition prior to surgery. In addition, the Board finds that, on remand, the Veteran should be scheduled for an updated VA examination to determine the current nature and severity of this service-connected bilateral knee disability. Finally, most recently in July 2020, the RO issued the Veteran a rating decision increasing his rating for flexion in the right knee to 30 percent, and his extension was increased to 20 percent. In the July 2020, Supplemental Statement of the Case (SSOC), the RO stated that the Veteran’s increased evaluation for limitation extension for the right knee was not on appeal. The Board finds that the action taken in the July 2020 rating decision was not a full grant of benefits sought on appeal. Moreover, the Veteran did not indicate a specific percentage he was seeking, thus he did not limit the scope of his appeal. See AB v. Brown, 6 Vet. App. 35, 39 (1993); Murphy v. Shinseki, 26 Vet. App. 510, 514 (2014). As such, the issue remains on appeal and a remand is required for the AOJ to issue a statement of the case, prior to the Board adjudicating the Veteran’s right knee claim. 38 C.F.R. § 19.29; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matter is REMANDED for the following action: 1. Obtain any outstanding VA or private treatment records. Request that the Veteran assist with locating these records, if possible. Associate these records with the claims file. 2. Then, schedule the Veteran for a VA examination with an appropriate examiner to determine the current severity of his service-connected degenerative arthritis with capsulitis and chondromalacia patella of the left knee and service-connected degenerative arthritis with capsulitis and chondromalacia patella of the right knee. The claims file and a copy of this remand must be made available for review. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to degenerative arthritis with capsulitis and chondromalacia patella of the left knee and degenerative arthritis with capsulitis and chondromalacia patella of the right knee alone and discuss the effect of the Veteran’s degenerative arthritis with capsulitis and chondromalacia patella of the left knee and degenerative arthritis with capsulitis and chondromalacia patella of the right knee on any occupational functioning and activities of daily living. If it is not possible to provide aspecific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner 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 examiner (does not have the knowledge or training). A clear rationale must be provided for all opinions expressed. The examiner should consider the Veteran’s lay statements regarding symptoms of his bilateral knee conditions when making an opinion. 3. Obtain an addendum retrospective opinion for the Veteran’s bilateral knee condition, for the time period of the November 2017 VA examination. Specifically, the examiner should address in a retrospective opinion the extent of any 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. If this cannot be determined, the examiner should provide an adequate rationale. The examiner is asked to consider all lay statements provided by the Veteran during the course of his VA examination. 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. 4. Obtain an addendum retrospective opinion for the Veteran’s bilateral knee condition, subsequent to his November 2017 VA examination, but prior to the Veteran’s left total knee replacement surgery. The examiner should first take an accurate history from the Veteran, and then review the Veteran’s complete record including but not limited to prior examinations, remands, and treatment records. The examiner should address in a retrospective opinion an estimation of when the Veteran’s knee condition worsened, and an estimation of the Veteran’s range of motion and the extent of any 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 subsequent to the November 2017 VA examination. If this cannot be determined, the examiner should provide an adequate rationale. The opinion provided must be based on the totality of the evidence, to include the Veteran’s lay statements as to the Veteran’s range of motion, and 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. 5. 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). 6. After the above steps have been completed, issue an SSOC addressing the Veteran’s right knee claim including the extension rating that is currently on appeal. If the Veteran perfects an appeal by submitting a timely VA Form 9, then return such issue to the Board for further appellate consideration, if otherwise in order. 7. Thereafter, readjudicate the remaining claims on appeal. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. 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.