Citation Nr: 21023732 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 09-50 875 DATE: April 21, 2021 REMANDED Entitlement to increased evaluations for a right knee disability is remanded. Entitlement to increased evaluations for a left knee disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to December 1, 2020, is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from August 1990 to July 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2006 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in February 2015. This case was most recently before the Board in December 2020, when it was remanded for development. The case has been returned to the Board for further appellate review. A December 2020 rating decision granted entitlement to a TDIU effective December 1, 2020. As this issue was raised in conjunction with the appeal of the Veteran’s knee disability ratings, the Board must still consider entitlement to a TDIU for the period prior to December 1, 2020. See Harper v. Wilkie, 30 Vet. App. 356 (2018) (holding that where a Rice TDIU claim has been raised, and the grant of TDIU does not encompass the entire disability rating period on appeal, it serves as a partial grant and the remaining period for which TDIU was not granted or considered, remains in appellate status.) 1. Entitlement to increased evaluations for a right knee disability is remanded. 2. Entitlement to increased evaluations for a left knee disability is remanded. The prior Board remand directed the RO to obtain a retrospective medical opinion regarding loss of range of motion in the Veteran’s knees throughout the period from July 2006 until his prosthetic knee joint replacements performed in March 2015 and October 2019. The VA examiner reiterated range of motion measurements present in the record for the left knee (September 2006) and the right knee (September 2006, September 2017), but did not provide any estimates as to the rest of the specified period. Further, the examiner did not opine as to whether it was possible to provide such an estimate, noting only that these examinations were the only ones available in the record, which is not an accurate statement. As the RO relied on this incomplete and inaccurate opinion, the Board finds that substantial compliance with the remand directive was not achieved, and another remand is necessary to obtain an adequate opinion. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (remand by Board confers upon claimant, as a matter of law, the right to compliance with remand order). 3. Entitlement to a TDIU prior to December 1, 2020, is remanded. The TDIU issue is intertwined with the issue remanded above and is also remanded at this time. The matters are REMANDED for the following action: Obtain a retrospective opinion regarding the Veteran’s appeal of ratings assigned for his service-connected left and right knee disabilities in accordance with the holding in Chotta v. Peake, 22 Vet. App. 80 (2008). It must be noted the Board is not requesting current range-of-motion testing of the knees. The examiner is specifically asked to provide retrospective estimates of range of motion loss of the left and right knees after repetitive use; during flare-ups; and on passive range of motion, weightbearing and non-weightbearing, THROUGHOUT the appeal period that commenced with the Veteran’s July 2006 increased rating claim up until his bilateral prosthetic knee joint replacements, performed in March 2015 (left knee) and October 2019 (right knee), to the extent possible. The estimates provided should be based on all available evidence, including lay statements by the Veteran and reports made in any applicable medical treatment records. The examiner is permitted to consider evidence such as initial range of motion measurements and lay statements made by the Veteran from examinations previously found inadequate by the Board, such as those performed in October 2014, January 2017, September 2017, and March 2019, to the extent the examiner finds this evidence clinically sufficient upon which to base an estimate. (Continued on next page)   If the examiner cannot provide the requested opinion, he or she is asked to provide a detailed explanation for why this is so. If the examiner reports that the opinion cannot be provided without resorting to speculation, the examiner must clearly acknowledge that he or she has considered the Veteran’s reports and other lay evidence of record and explain why such evidence is insufficient to avoid resorting to speculation. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Josey, 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.