Citation Nr: 21021069 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 13-34 278A DATE: April 9, 2021 REMANDED Entitlement to higher initial disability evaluations for degenerative joint disease of the left knee, rated as noncompensable prior to June 27, 2012; as 10 percent disabling from June 27, 2012, to December 8, 2013; and as 30 percent disabling since December 9, 2013, is remanded. Entitlement to higher initial disability evaluations for degenerative joint disease of the right knee, rated as noncompensable prior to December 26, 2012; as 10 percent disabling from December 26, 2012, to June 3, 2015; and as 30 percent disabling since June 4, 2015, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1968 to August 1972, from September 1972 to September 1976, and from November 1983 to September 1988. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 Rating Decision of a Department of Veterans Affairs (VA) Regional Office (RO). On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. Here, the appellant has not opted-in to VA’s test program, the Rapid Appeals Modernization Program (RAMP), with respect to the claims addressed herein. Although the AMA was implemented effective February 19, 2019, the Rating Decision on appeal was issued prior to that date. Accordingly, the Board will review this appeal under the existing Legacy Appeals System. The Veteran seeks entitlement to higher initial disability ratings for his service-connected degenerative joint disease of the left knee and degenerative joint disease of the right knee. Unfortunately, the Board finds that additional development must be undertaken before these claims can be adjudicated on the merits. The Veteran was provided with a VA Knee and Lower Leg Conditions examination in October 2011, at which time he reported flare-ups that impacted the function of the knee and/or lower leg. Specifically, he indicated that he experienced stiffness and pain in the bilateral knees once per week, and that he also experienced pain while running. The Veteran was subsequently provided with a VA Knee and Lower Leg Conditions examination in December 2012, at which time the Veteran informed the examiner that his knee pain has gotten progressively worse and weather changes making both knees worse. The Veteran did not report flare-ups. The Veteran was again provided with a VA Knee and Lower Leg Conditions examination in June 2015, at which time he again reported flare-ups of the knee and/or lower leg. Specifically, he indicated that his flare-ups were precipitated by weather changes to rain or cold or by overactivity of the lower limbs. His pain intensity during a flare-up was 9/10, and the duration of each flare-up was approximately 12 to 14 hours. When the Veteran experienced a flare-up, his ability to walk and/or stand became very limited, and he generally had to stay off his feet until the flare-up subsided. Although the June 2015 examination was not being conducted during a flare-up, the examiner opined that the pain significantly limited functional ability during flare-ups of the bilateral knee, with right knee flexion limited to 25 degrees, left knee flexion limited to 20 degrees, right knee extension limited to 5 degrees, and left knee extension limited to 5 degrees during flare-ups. An October 2018 Board decision remanded the Veteran’s knee claims so that he could be afforded another VA examination to determine the current severity of his bilateral knee degenerative joint disease, as he had indicated that his symptomatology has worsened since the June 2015 examination. Pursuant to the Board’s Remand, the Veteran was provided with another VA Knee and Lower Leg Conditions examination in August 2019. However, the August 2019 examination report indicated that the Veteran did not report flare-ups of the knee and/or lower leg. In January 2021, the Board found that the August 2019 VA examination did not comply with its previous remand directives. Specifically, the Board emphasized that the August 2019 VA examiner indicated that the Veteran did not experience flare-ups of his condition; however, the Veteran did report flare-ups during previous examinations. As the August 2019 VA examination was not performed during a flare-up, and it did not appear that the examiner considered the Veteran’s reports of the effects of flare-ups, the Board again remanded the appeal in order to obtain a medical examination that addressed the Veteran’s reports of flare-ups of the bilateral knees. Pursuant to the Board’s January 2021 Remand directives, the Veteran was provided with another VA Knee and Lower Leg Conditions examination in January 2021. Crucially, however, the VA examiner simply indicated that the Veteran did not report flare-ups of the knee and/or lower leg, without acknowledging the previous reports of flare-ups and discussing whether those previous flare-ups had resolved or whether the previous reports of flare-ups were erroneous. The January 2021 examination report also indicated that the Veteran regularly used a cane due to his degenerative joint disease of the right knee and left knee. In a March 2021 Written Brief Presentation, the Veteran’s representative argued that the January 2021 VA Knee and Lower Leg Conditions examination was inadequate because the examiner, a general nurse practitioner, failed to acknowledge the Veteran’s previous statements regarding flare-ups. Additionally, the representative emphasized that although the January 2021 examiner acknowledged that the Veteran regularly used a cane for his service-connected knee symptomatology, the examiner failed to articulate why the cane was used, as the examination report found that there was no instability. When the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). Additionally, once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, the Board’s January 2021 Remand directives emphasized that the Veteran had historically described bilateral knee flare-ups as precipitated by poor weather and overexertion, resulting in increased functional loss, and remanded the matters for an additional examination because it did not appear that the previous examiner considered the Veteran’s reports of the effects of flare-ups. Unfortunately, the January 2021 VA examination report also did not acknowledge the Veteran’s history of flare-ups or discuss the progression of his symptomatology. This is particularly problematic in the instant case, as the Veteran has indicated a worsening of his bilateral knee symptomatology over time (with his knee flexion during flare-ups in June 2015 limited to 25 degrees in the right knee and 20 degrees in the left knee), yet the most recent examination in January 2021 incongruously indicated that knee flexion was limited to 130 degrees, bilaterally, with no evidence of flare-ups. As such, an addendum opinion is necessary to resolve conflicting evidence of record and to discuss the progression of the Veteran’s knee disabilities from 2011 to the present, with an emphasis on functional limitations during flare-ups. Specifically, if the examiner finds that flare-ups are not currently indicated by the evidence of record, then the examiner must discuss whether those previous flare-ups (documented on the October 2011 and June 2015 examination reports) have since resolved or whether the previous documentations of flare-ups were erroneous. Additionally, as suggested by the Veteran’s representative, an addendum opinion describing the specific reasons for the Veteran’s cane use (i.e., for assistance with stability, for assistance with ambulation, etc.) would be helpful to the Board in evaluating the severity of hi service-connected knee symptomatology. The matters are REMANDED for the following action: Obtain an addendum opinion regarding the progression of the Veteran’s bilateral knee symptomatology, with an emphasis on functional limitations during flare-ups. The entire claims file must be made available to and be reviewed by the examiner. If an additional in-person examination is deemed necessary, then one should be provided. An explanation for all opinions expressed must be provided. If flare-ups of bilateral knee symptomatology are currently indicated, then the examiner is asked to attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, then the examiner 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. If it is not possible to provide a specific measurement without speculation, then the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts), a deficiency in the record (i.e., additional facts are required), or a deficiency of the individual examiner (i.e., does not have the knowledge or training). If flare-ups of bilateral knee symptomatology are not currently indicated, then the examiner must discuss whether the previous flare-ups documented on the October 2011 and June 2015 examination reports have since resolved or whether these previous documentations of flare-ups were erroneous. In providing this analysis, the examiner is asked to specifically discuss the October 2011 VA Knee and Lower Leg Conditions examination, at which time the Veteran reported flare-ups resulting in stiffness and pain in the bilateral knees once per week, as well as pain while running. The examiner is also asked to specifically discuss the June 2015 VA Knee and Lower Leg Conditions examination, at which time the Veteran reported flare-ups precipitated by weather changes or overactivity of the lower limbs, with right knee flexion limited to 25 degrees and left knee flexion limited to 20 degrees during such flare-ups. Lastly, the examiner is asked to describe the specific reasons for the Veteran’s regular cane use (i.e., for assistance with stability, for assistance with ambulation, etc.), as documented in the January 2021 VA examination. If it is not possible to provide any of the requested opinions without resort to speculation, then the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts), a deficiency in the record (i.e., additional facts are required), or a deficiency of the individual examiner (i.e., does not have the knowledge or training). Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Anthony M. Flamini 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.