Citation Nr: 21010948 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 12-03 560 DATE: February 26, 2021 REMANDED Entitlement to a separate disability rating for right knee meniscal tear is remanded. Entitlement to a rating in excess of 10 percent for right knee strain with tendonitis is remanded. Entitlement to a rating in excess of 10 percent for status post medial meniscectomy of the left knee is remanded. Entitlement to a rating in excess of 10 percent for left knee instability is remanded. Entitlement to a rating in excess of 10 percent prior to February 27, 2013, and to a rating in excess of 20 percent thereafter, for thoracolumbar spine degenerative disc disease with intervertebral disc disease (previously rated as thoracolumbar myalgia) is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) prior to July 28, 2010, to include on an extraschedular basis, is remanded. REASONS FOR REMAND The Veteran had active military service from July 1994 to January 2002. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2010, January 2012, and February 2014 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2017, the Board remanded the claims of entitlement to a rating in excess of 10 percent for right knee strain with tendonitis, entitlement to a rating in excess of 10 percent for status post medial meniscectomy of left knee, and entitlement to a rating in excess of 10 percent prior to February 27, 2013 and in excess of 20 percent thereafter, for degenerative disc disease of the thoracolumbar spine with intervertebral disc disease. In a September 2017 decision, the Board denied these claims. The Veteran appealed the September 2017 Board decision to the United States Court of Appeals for Veterans Claims (Court). In March 2019, the Court granted the parties’ Joint Motion for Remand (JMR), set aside the Board’s decision, and remanded it for further adjudication. Specifically, the parties to the JMR determined that the VA back and knee examinations of record, upon which the Board relied in its September 2017 denial, were inadequate to support a denial of higher and/or separate ratings because they failed to estimate additional functional loss from flare-ups or after repeated use over time. Additionally, the parties agreed that the Board erred in failing to address the issues of entitlement to a separate disability rating for reported right and left knee meniscal tear under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5258 (2020) for symptomatic residuals of removal of semilunar cartilage, as well as entitlement to a TDIU prior to July 28, 2010. The above-listed claims thus returned to the Board in August 2019, at which time the Board remanded the knee and low back claims for VA examinations to reassess the nature and current severity of his service-connected disabilities and to provide retrospective medical opinions regarding both the severity of the Veteran’s low back and knee disabilities at the time of the prior VA examinations, and the estimated additional functional loss from flare-ups or after repeated use over time. The Board additionally requested a VA medical opinion concerning the nature and etiology of the Veteran’s reported right knee meniscal tear, to include whether it was caused or aggravated by any service-connected disability. Finally, because the Veteran did not generally meet the criteria for schedular consideration for TDIU prior to July 28, 2010, the Board remanded the issue of entitlement to a TDIU for this period for referral to the Director of the Compensation Service (Director) for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). The requested VA examinations of the Veteran’s back and knees occurred in November 2019, with addendum opinions provided in September and November 2020. Additionally, the Director’s advisory opinion regarding extraschedular TDIU consideration was obtained in August 2020. Accordingly, the claims have again returned to the Board. Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 1. Entitlement to a separate rating for right knee meniscal tear is remanded. As noted in the introduction above, in the August 2019 remand, the Board requested a VA medical opinion concerning the nature and etiology of the Veteran’s reported right knee meniscal tear. In particular, the Board instructed that the examining VA clinician provide an opinion as to whether it was “at least as likely as not (a 50 percent or greater probability) that the Veteran’s right knee meniscal tear arose during or is due to service,” and whether it was “at least as likely as not (a 50 percent or greater probability) that the Veteran’s right knee meniscal tear was caused or was aggravated beyond its natural progression by his service-connected disabilities? If aggravated, provide a baseline for the right knee meniscal tear disability pre-aggravation.” See August 2019 Board Decision (emphasis in original). The Veteran was provided a VA knee examination and medical opinion in November 2019, with an addendum opinion in September 2020. See November 2019 VA Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ); November 2019 VA Medical Opinion DBQs; September 2020 VA Addendum Report. The November 2019 VA examiner determined that a review of the medical evidence of record revealed “[n]o objective evidence to support a right knee meniscus tear.” See November 2019 VA Knee and Lower Leg Conditions DBQ. See also November 2019 VA Medical Opinion DBQs (declining to provide etiological opinions regarding the Veteran’s right knee meniscal tear because “[t]here is no diagnosis or objective evidence to support a diagnosis of right knee meniscal tear” during the pendency of the claim). In the September 2020 addendum opinion, the clinician who performed the November 2019 VA examination refused to provide an opinion regarding the etiology of the right knee meniscus tear, again citing the lack of medical evidence of a right knee meniscal pathology during the appellate period. See September 2020 VA Addendum Report. However, the VA examiner failed to consider or address the repeated notations in the Veteran’s VA medical records reflecting radiographic confirmation of a tear in the right meniscus. See, e.g., November 2010 VA Orthopedics Consult Note (reporting that a November 2010 right knee MRI shows a “[m]edial meniscus body and posterior horn tear extending into the posterior root attachment”); December 2010 VA Orthopedics Consult Note (reflecting that an MRI of the right knee shows a meniscus tear); March 2016 VA Emergency Department Provider Note (noting the Veteran’s complaints of right knee pain and recommending an MRI of the right knee); March 2016 VA Emergency Department Addendum Note (reflecting that the Veteran was seen for a complaint of right knee pain and including instructions to “[s]chedule MRI with Radiology dept.”); March 2016 VA Diagnostic Test Result Notification (noting that an “MRI does show extensive fluid and meniscal tear and subluxation of the joint” and reflecting that the Veteran was “refer[red]... to ortho.”); April 2016 VA Orthopedics Consult Note (noting that an MRI reflected a “horizontal and radial tear of posterior horn of medial meniscus” and noting an assessment of “R medial meniscus tear”). Accordingly, because the November 2019 VA knee examination report and opinion and the September 2020 addendum opinion are based on an inaccurate factual premise, namely that there is no medical evidence of a right knee meniscal tear during the relevant appellate period, they are inadequate. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (finding a medical examination based on an inaccurate factual premise inadequate for rating purposes). Because of the inadequacies of the November 2019 and September 2020 medical opinions, the AOJ requested yet another medical opinion, which was completed in November 2020. See September 2020 VA Exam Scheduling Request; November 2020 VA Medical Opinion DBQ. The November 2020 VA examiner opined that it was “less likely than not that the veteran’s right knee condition/meniscal tear had its nexus in service or is due to or incurred in the veteran’s left knee conditions, including alteration of gait.” See November 2020 VA Medical Opinion DBQ. However, this opinion is also inadequate for a number of reasons. First, the November 2020 VA examiner failed to specify the nature of the Veteran’s right knee pathology and failed to acknowledge or address the multiple right knee diagnoses of record. Instead, the examiner provided a negative etiological opinion for the Veteran’s “right knee condition/meniscal tear” generally, despite the fact that service connection is already in effect for a right knee condition, characterized as right knee strain with tendonitis. See id. Second, in support of the negative opinion, the VA examiner relied upon the findings in the November 2019 VA knee examination, which he “considered [to be] thorough” and represent a “valid H[istory ]&[ ]P[hysical]” because its purpose was to “identify conditions requiring follow-up care and to assist the Veteran with potential liability claims” and because it “represent[s] a medicolegal document.” Id. The November 2020 VA examiner’s reliance upon a VA examination report that is itself reliant upon an inaccurate factual premise renders the November 2020 VA medical opinion inadequate. See Reonal, 5 Vet. App. at 461. Further, in considering the potential relationship between the Veteran’s right knee meniscal pathology and his service-connected conditions, the November 2020 VA examiner focused entirely upon the Veteran’s service-connected left knee condition and failed to consider or address in any way the Veteran’s other service-connected conditions, including specifically the Veteran’s already service-connected right knee pathology. See November 2020 VA Medical Opinion DBQ. See also August 2019 Board Decision (noting that the Veteran is service-connected for a number of conditions in addition to the left knee pathology). Finally, in opining that the Veteran’s right knee condition was less likely than not “proximately due to or the result of” a service-connected disability, the examiner failed to provide an opinion as to whether the Veteran’s acquired right knee meniscal tear was aggravated by any service connected disability. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013) (holding that the Board erred in relying on an examiner’s finding of a Veteran’s nonservice-connected disorder being “not related to” a service-connected disorder to conclude that the former was not aggravated by the latter). Significantly, the August 2019 Board remand explicitly requested an opinion as to whether any service-connected disability caused or aggravated the right knee meniscal tear. See August 2019 Board Decision. As such, there has not been substantial compliance with the Board’s previous 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 insure 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); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Accordingly, remand for an adequate opinion is required. 2. Entitlement to a rating in excess of 10 percent for right knee strain with tendonitis is remanded. 3. Entitlement to a rating in excess of 10 percent for status post medial meniscectomy of the left knee is remanded. 4. Entitlement to a rating in excess of 10 percent for left knee instability is remanded. 5. Entitlement to a rating in excess of 10 percent prior to February 27, 2013, and in excess of 20 percent thereafter, for thoracolumbar spine degenerative disc disease with intervertebral disc disease (previously rated as thoracolumbar myalgia) is remanded. As concerning the claims for higher ratings for the service-connected right knee, left knee, and low back conditions, in keeping with the findings of the March 2019 JMR, the Board sought retrospective medical opinions regarding the general severity and the estimated additional functional loss from flare-ups and/or after repeated use over time. See August 2019 Board Remand. Specifically, the Board instructed the VA examiner to “provide a retrospective opinion regarding the extent of the Veteran’s right and left knee disabilities at the time of the February 2013 VA examination and the extent of his back disability at the time of the September 2012 VA examination.” Id. Additionally, the Board requested that the examiner “estimate the additional functional loss to the Veteran’s knees from flare-ups or after repeated use over time at the time of the February 2013 VA examination” and “estimate the additional functional loss to the Veteran’s spine from flare-ups or after repeated use over time at the time of the September 2012 VA examination.” Id. However, despite the Board’s explicit instruction, and despite the inclusion of the above instructions in the November 2019 exam scheduling request, there is no indication in either the November 2019 VA examination report, the November 2019 medical opinion DBQs, or any subsequent VA examination reports or VA medical opinions that any attempt has been made to provide the requested retrospective opinions or to explain why retrospective findings cannot be made. See August 2019 Board Decision; November 2019 VA Exam Scheduling Request, November 2019 VA Knee and Lower Leg Conditions DBQ; November 2019 VA Back (Thoracolumbar Spine) Conditions DBQ; November 2019 VA Medical Opinion DBQs; September 2020 VA Addendum Report; November 2020 VA Medical Opinion DBQ. See also Stegall, 11 Vet. App. At 271; Dyment, 13 Vet. App. 141 at 146-47. Remand for new VA examinations is therefore required. 6. Entitlement to a TDIU prior to July 28, 2010, to include on an extraschedular basis, is remanded. Because the issue of entitlement to TDIU is dependent on the outcome of the increased rating claims that are remanded herein, as any potential grant of higher and/or separate rating for the remanded issues could result in a higher overall disability rating, the Board will defer consideration of this issue. See 38 C.F.R. § 4.16(a); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on the resolution of the second issue). The matters are REMANDED for the following action: 1. Obtain and associate with the file any outstanding VA treatment records. 2. Thereafter, upon receipt of all additional records, and any additional notification and/or development deemed warranted, schedule the Veteran for an appropriate examination(s) with an examiner(s) other than the VA examiners who performed the November 2019 and November 2020 VA examinations, to assess the nature and current level of severity of his service-connected low back and bilateral knee conditions. The examination(s) may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The entire claims file and a copy of this REMAND must be made available to the examiner(s) prior to the examination. The examiner(s) should report all manifestations related to service-connected disabilities. The examiner(s) must note in the examination report(s) that the evidence in the claims file has been reviewed. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. If possible, the appropriate Disability Benefits Questionnaires (DBQs) should be filled out for this purpose. The examiner(s) should provide additional diagnoses or make a change to a diagnosis where medically justified, with an explanation of the justification for any such change. See 38 C.F.R. § 4.13 (reflecting that the aim of the reconciliation of the various diagnoses and etiological theories of record is to identify and maintain, or continue, the diagnosis or etiology upon which service connection for the disability was initially granted). The examiner(s) should identify and describe in detail all orthopedic and neurological manifestations of the Veteran’s service-connected low back and left and right knee conditions. Additionally, the examiner(s) must also specifically state whether the Veteran has any symptoms due solely to any other service-connected or nonservice-connected conditions. After examining the Veteran, evaluating the current nature and severity of his service-connected low back and left and right knee disabilities, reviewing the Veteran’s full history by conducting a complete review of the claims file (including all available lay statements, private and VA medical treatment records, and examination reports), the examiner(s) must: (i) Test and document the range of motion (ROM) for each joint in question in active motion, passive motion, weight-bearing, and non-weight-bearing, on both an initial and after-repetitive-use basis. For each ROM, the examining clinician is asked to explicitly identify the degree in which pain is first evidenced by the Veteran’s visible behavior. If unable to conduct the required testing or if the determination is made that the required testing is not necessary in this case, the examiner(s) must provide a thorough explanation. (ii) Attempt to elicit information regarding the severity, frequency, and duration of any reported flare-ups, and the degree of functional loss during any such flare-ups. The examiner(s) should asses such impairment in terms of the degree of additional ROM loss and provide an explanation as to how any such determination was made. If it is not possible to provide a specific ROM measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner(s) should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. (iii) Identify the nature and severity of all current manifestations of the Veteran’s service-connected back and left and right knee conditions. The examiner(s) should describe the extent of any weakened movement, excess fatigability, and incoordination found to be present in terms of the degree of additional ROM loss. Additional limitation following repetitive use over time, if any, must also be noted. (iv) Identify any symptoms and functional impairments due to his service-connected back and left and right knee disabilities, to the extent possible, and discuss the effect of the Veteran’s disabilities on any occupational functioning and activities of daily living. (v) Perform knee joint stability testing. If any instability of the left and/or right knees is identified, the examiner(s) should describe whether the knee instability is mild, moderate, or severe and should indicate whether, as a result of the identified condition, the Veteran requires any assistive devices (e.g., cane(s), crutch(es), walker) or bracing for ambulation. If unable to conduct the required testing or if the determination is made that the required testing is not necessary in this case, the examiner(s) must provide a thorough explanation. Additionally, pursuant to the March 2019 Joint Motion for Remand (JMR) and the August 2019 Board decision, the examiners must: (vi) Utilize the Veteran’s medical records and lay reports concerning the history of his low back and left and right knee symptoms and impairment to provide RETROSPECTIVE OPINIONS regarding the frequency, duration, characteristics, severity, or functional loss with any repetitive use or during any flare-ups of the Veteran’s right and left knee disabilities at the time of the February 2013 VA examination and back disability at the time of the September 2012 VA examination. Any impairment should be assessed in terms of limitation to ROM, including on (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in nonweight-bearing. Specifically, the examiner(s) should, to the extent possible and considering all procurable and ascertainable data, provide estimates of: (a) the additional functional loss to the Veteran’s knees from flare-ups or after repeated use over time at the time of the February 2013 VA examination; and (b) the additional functional loss to the Veteran’s spine from flare-ups or after repeated use over time at the time of the September 2012VA examination. Any additional limitation due to repetitive use over time or flare-ups should be assessed in terms of the degree of additional ROM loss. The Board emphasizes that, in providing the requested retrospective opinions, the examiner(s) must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of ROM, including the effect of the Veteran’s disabilities on any occupational functioning and activities of daily living. (vii) Provide an opinion as to the nature and etiology of the Veteran’s diagnosed right knee meniscal tear. Specifically, the examiner(s) must address: (a) Whether it is at least as likely as not (50 percent or greater probability) that any right knee meniscal pathology had its clinical onset during active service or is related to any in-service disease, event, or injury. (b) Whether it is at least as likely as not (50 percent or greater probability) that any right knee meniscal pathology was either (a) caused by, or (b) aggravated by any of the Veteran’s service-connected disabilities, including specifically his service connected right knee strain with tendonitis, left knee meniscectomy residuals with instability, and degenerative disc disease of the thoracolumbar spine, to include due to alteration of gait and/or falls related to the service-connected disabilities. In providing these requested opinions, the examiner should note that that the Veteran is competent to report the onset and duration of his symptoms as well as his medical history. Additionally, the examiner should consider the VA medical records reflecting radiographic confirmation of a tear in the right meniscus. See, e.g., November 2010 VA Orthopedics Consult Note (reporting that a November 2010 right knee MRI shows a “[m]edial meniscus body and posterior horn tear extending into the posterior root attachment”); December 2010 VA Orthopedics Consult Note (reflecting that an MRI of the right knee shows a meniscus tear); March 2016 VA Emergency Department Provider Note (noting the Veteran’s complaints of right knee pain and recommending an MRI of the right knee); March 2016 VA Emergency Department Addendum Note (reflecting that the Veteran was seen for a complaint of right knee pain and including instructions to “[s]chedule MRI with Radiology dept.”); March 2016 VA Diagnostic Test Result Notification (noting that an “MRI does show extensive fluid and meniscal tear and subluxation of the joint” and reflecting that the Veteran was “refer[red]... to ortho.”); April 2016 VA Orthopedics Consult Note (noting that an MRI reflected a “horizontal and radial tear of posterior horn of medial meniscus” and noting an assessment of “R medial meniscus tear”). The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner(s) must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner(s), a reason for doing so must be provided. All examination findings, along with the complete explanation for all opinions expressed, must be set forth in the examination report. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner(s) must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The examiner(s) must include a discussion of any specific facts that cannot be determined and 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). See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). 3. Following completion of the above directive, review the claims file to ensure compliance with this remand. If any examination report does not include adequate responses to the specific opinions requested, it must be returned to the examiner for corrective action. 4. After completing all of the above, and any additional development deemed warranted, readjudicate the claims on appeal, including the issue of entitlement to TDIU prior to July 28, 2010. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. McCabe, 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.