Citation Nr: 21022708 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 84-25 423 DATE: April 19, 2021 REMANDED An increased disability rating in excess of 10 percent for low back syndrome prior to February 27, 1989; in excess of 20 percent from February 27, 1989; and in excess of 40 percent from February 16, 1994. An increased disability rating in excess of 20 percent for postoperative reconstruction of the left knee prior to February 16, 1994; and in excess of 30 percent thereafter. An increased disability rating in excess of 10 percent for chondromalacia of the right knee. A compensable disability rating for right knee limitation of extension prior to August 11, 2020; and in excess of 30 percent thereafter.   REASONS FOR REMAND The Veteran served on active duty from January 1968 to December 1969 and from September 1972 to May 1979. The case is on appeal from October 1979 and April 1985 rating decisions. Most recently, in a May 2020 decision, the Board denied an earlier effective date for the award of a 10 percent rating for low back syndrome. At that time, the Board also remanded the instant matters for further development. While the case was in remand status, in a September 2020 rating decision, the RO granted a separate 30 percent rating for right knee limitation of extension effective August 11, 2020, and, by implication, a noncompensable rating prior to that date. That part of the separate 2020 rating decision is part and parcel of the right knee claim previously on appeal as it represented an award of separate staged ratings for the same underlying right knee disability on appeal. Hence, the Board has included that issue within the scope of this appeal. The September 2020 rating decision also awarded separate disability ratings for left and right lower extremity radiculopathy secondary to the service-connected low back disability. The Veteran has not filed a notice of disagreement (NOD) disagreeing with any appealable determination made in the September 2002 rating decision, including the schedular ratings or effective date assigned by the RO, as it pertains to left and right lower extremity radiculopathy. Hence, those issues are not on appeal within the scope of the instant remand. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). As noted in the prior decision, a claim for a total disability rating based on individual unemployability due to service-connected disability (TDIU) is not on appeal. The Veteran is currently in receipt of a TDIU effective from October 7, 1997. He was previously awarded a TDIU from an earlier effective date, but the award was discontinued in a January 1998 rating decision based on a finding of fraud. The issue as to any earlier period of a TDIU was not appealed, and the Board finds that it cannot now be re-raised as part of the instant appeal in light of the fraud finding. See 38 C.F.R. §§ 3.105(a); 3.400(k); cf. Harper v. Wilkie, 30 Vet. App. 356, 359 (2018). 1. An increased disability rating in excess of 10 percent for low back syndrome prior to February 27, 1989; in excess of 20 percent from February 27, 1989; and in excess of 40 percent from February 16, 1994. 2. An increased disability rating in excess of 20 percent for postoperative reconstruction of the left knee prior to February 16, 1994; and in excess of 30 percent thereafter. 3. An increased disability rating in excess of 10 percent for chondromalacia of the right knee. 4. A compensable disability rating for right knee limitation of extension prior to August 11, 2020; and in excess of 30 percent thereafter. In the May 2020 remand, the Board found that a VA examination was warranted to evaluate the current severity of the service-connected disabilities, including the long-pending historical rating stages. In this regard, the Board found that a retrospective medical opinion was warranted to fully comply with 38 C.F.R. § 4.59, to the extent possible, as the prior examinations did not contain the needed findings throughout the 40-year appeal period. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016); see also Sharp v. Shulkin, 29 Vet. App. 26, 35-36 (2017). On remand, a VA examination was conducted in August 2020. It provided findings at the Veteran’s current disability level. However, it did not provide retrospective findings as to his disability level during the entire appeal period as asked by the Board. Hence, the VA examination is not substantially compliant with the Board’s remand. See Stegall v. West, 11 Vet. App. 268 (1998); see D’Aries v. Peake, 22 Vet. App. 97, 104-05 (2008). In the May 2020 remand, the Board also noted that the rating criteria for evaluating the spine were amended during the appeal period. Previously, limitation of motion of the lumbar spine was rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5292 (1979). Effective September 23, 2002, until September 26, 2003, DC 5293, for intervertebral disc syndrome was revised. Subsequently, on September 26, 2003, revisions to the VA rating schedule established the present General Rating Formula for Diseases and Injuries of the Spine and a Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. See 68Fed. Reg. 51454-58 (Aug. 27, 2003). Since that time, the rating schedule pertaining to musculoskeletal disabilities, including the spine and knees, was again amended effective February 7, 2021. The RO must ensure that the claims are considered under all appropriate diagnostic criteria. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to provide retrospective findings regarding the low back and knees in regard to pain on range of motion testing and an estimation of functional loss, per Correia and Sharp, for the time period from 1979 to present. (a.) The examiner should estimate in degrees the amount of range of motion lost due to pain in both weight-bearing and nonweight-bearing positions, and on both active and passive motion experienced by the Veteran. (b.) The examiner should also estimate in degrees the amount of range of motion lost due to flare-ups experienced by the Veteran. (c.) In addition to range of motion measurements, the examiner should characterize the limitation of motion of the lumbar spine from a medical perspective as: slight, moderate, or severe. (d.) Any associated neurologic abnormalities, apart from radiculopathy, should be identified. (e.) The examiner is asked to identify, to the extent possible, the date on which any change in degree of impairment first occurred. (f.) If the examiner cannot provide any or all of the requested information, 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). (signatures continued on next page) RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals H. SEESEL Veterans Law Judge Board of Veterans’ Appeals TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Gayle Strommen Veterans Law Judge Board of Veterans’ Appeals M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bosely, 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.