Citation Nr: 21012776 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 18-49 851A DATE: March 5, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for right knee patellofemoral syndrome and degenerative arthritis with history of non-displaced fracture of superior pole of the right patella (right knee disability) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from March 1970 to March 1974. This matter is on appeal from a September 2017 rating decision. In a March 2019 decision, the Board denied the Veteran’s claim of entitlement to an initial rating in excess of 10 percent for right knee disability and granted a separate 10 percent rating for right knee disability, based on symptoms related to removal of semilunar cartilage. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In October 2019, the Court granted a Joint Motion for Partial Remand (JMPR), vacating the portion of the March 2019 Board decision that denied entitlement to an initial rating in excess of 10 percent for right knee disability, and remanded the matter for action consistent with terms of the JMPR. As noted by the Court, the Board’s grant of a separate 10 percent evaluation for right knee disability, based on symptoms related to removal of semilunar cartilage is a favorable finding and, therefore, this finding is beyond the Court’s jurisdiction and will not be disturbed. In February 2020, the Board remanded the claim for further development pursuant to the JMPR. Specifically, the Board noted that the Veteran underwent VA examinations for his right knee in March 2017 and September 2017. As to the March 2017 examination, initial range of motion in the right knee was 0 to 130 degrees flexion with reported right knee flare-ups. The VA examiner did not estimate range of motion loss based on the Veteran’s reported flare-ups and their impact, stating that to do so would be speculative, as the examination was not conducted during an actual flare-up. As to the Veteran’s September 2017 examination, initial range of motion in the right knee was 0 to 125 degrees flexion with reported right knee flare-ups. The VA examiner did not estimate range of motion loss based on the Veteran’s reported flare-ups and their impact, stating that to do so would be speculative. The Board remanded the claim to ensure that the Board has adequate information as to the Veteran’s reported flare-ups of his right knee, as well as to obtain a retrospective medical opinion addressing limitation of motion during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Pursuant to the Board’s remand, in June 2020 the Veteran underwent a VA knee and lower leg conditions Disability Benefits Questionnaire examination that satisfied the remand directives. However, regarding the Board’s directive for a retrospective regarding flare-ups from March 2017 to September 2017, in a June 2020 VA medical opinion the examiner stated that he could not locate any medical records between March 2017 and September 2017 and did not provide the requested medical opinion. As such, the claim must be returned to the AOJ so that the February 2020 remand directives regarding the requested medical opinion can be completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: Obtain an appropriate addendum by an examiner, other than the June 2020 VA examiner, regarding the nature and severity of the Veteran’s service-connected right knee disability. Unless the examiner finds that a new examination is required, the Veteran need not be examined again. The claims file, including a copy of the October 2019 Joint Motion for Partial Remand and February 2020 remand, must be made available to the examiner for review who should indicate that the claims file was reviewed. The examiner is asked to provide a retrospective medical opinion regarding the extent of the Veteran’s functional loss (i) after repetition over time and, separately, (ii) during flare-ups for the period of March 2017 to September 2017. The examiner should determine the additional functional loss the Veteran suffered during right knee flare-ups and after repetition over time by utilizing information in the medical records or other sources available to the examiner such as the March 2017 and September 2017 VA examination reports, to include the Veteran’s reported symptoms, and VA and private treatment records from the same period. To the examiner’s best ability, the additional range of motion loss should be described in degrees based on that information. If the examiner is unable to provide an opinion in this case, he or she should clearly explain the basis for the inability to do so. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Adams, 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.