Citation Nr: 21024152 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 14-36 976 DATE: April 22, 2021 REMANDED Entitlement to a rating in excess of 10 percent prior to December 16, 2018 for degenerative arthritis of the left knee is remanded. Entitlement to a rating in excess of 10 percent prior to December 16, 2018 for degenerative arthritis of the right knee is remanded. Entitlement to a rating in excess of 10 percent prior to December 16, 2018 for right ankle tendonitis is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Air Force from February 1982 to September 1985. Although the Board regrets the delay, remand is required to ensure there is a complete record on which to decide the Veteran’s claims. 1. Entitlement to a rating in excess of 10 percent prior to December 16, 2018 for degenerative arthritis of the left knee is remanded. 2. Entitlement to a rating in excess of 10 percent prior to December 16, 2018 for degenerative arthritis of the right knee is remanded. 3. Entitlement to a rating in excess of 10 percent prior to December 16, 2018 for right ankle tendonitis is remanded. The Veteran applied for increased ratings of the bilateral knees and right ankle in June 2017. In April 2019, November 2019, April 2020, and August 2020 the Board remanded the Veteran’s claims for increased ratings for examinations to consider the Veteran’s reports of flare ups per Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Prior to December 2018, the Veteran was afforded VA examinations of the knees and ankle in August 2017. The Veteran reported flare ups of the knees resulting in swelling after intense activity. The Veteran also reported flare ups of the ankle resulting in weakness and swelling. The examiner declined to provide an opinion regarding flare ups of the knees or ankle. In June 2020, the Veteran was afforded a VA examination which provided an opinion regarding flare ups, and the RO increased the Veteran’s disability ratings accordingly. In August 2020, the Board found that the Veteran’s consistent reports of flare ups warranted increased ratings back to December 2018 and remanded the period prior to December 2018 for retrospective opinions. In November 2020, an independent medical examiner (IME) reviewed the Veteran’s claims file. The examiner opined the severity of the Veteran’s bilateral knee and right ankle impairments had increased since the August 2017 VA examination. The examiner stated the Veteran’s current severity and limitations as related to flare ups, but failed to provide the requested retrospective opinion regarding the Veteran’s limitations considering flare ups for the period from June 3, 2016 (the date one year prior to the increased-rating claim) and prior to December 16, 2018 (the date the Board previously determined an increased rating was warranted). In addition to not providing a retrospective opinion, the examiner did not elicit a full history from the Veteran as directed by the August 2020 remand order. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the issue of the period prior to December 2018 in regard to the Veteran’s functional limitations of his bilateral knees and right ankle during periods of flare ups. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the Board continues find a retrospective medical opinion addressing the Veteran’s degenerative arthritis of the bilateral knees and right ankle tendonitis would be helpful in determining the appropriate disability ratings for the period on appeal prior to the increased ratings established as beginning in December 2018. See Chotta v. Peake, 22 Vet. App. 80, 84-85 (2008); Vigil v. Peake, 22 Vet. App. 63, 67 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the relevant time period). Although the retrospective opinion cannot now comply with the testing requirements set forth in Correia, an estimate of functional impairment in compliance with Sharp is still possible. The retrospective opinion must consider the period beginning June 3, 2016 (the date one year prior to the increased-rating claim) and prior to December 16, 2018 (the date of the Board has determined an increased rating was warranted). The matters are REMANDED for the following action: 1. After eliciting a full medical history from the Veteran, an appropriate VA examiner must provide a retrospective medical opinion as to the nature and severity of the Veteran’s bilateral knee disabilities and right ankle tendonitis during the period on appeal from June 3, 2016 to December 15, 2018. The entire claims file should be made available to and be reviewed by the clinician. The examiner is asked to specifically address the Veteran’s functional limitations in consideration of the Veteran’s reported flare ups from the period from June 3, 2016 to December 15, 2018. The examiner is asked to provide any estimated range of motion findings that can be determined with consideration of the Veteran’s reports of flare ups. The examiner is directed that this is the only time period required to be addressed. The examiner is requested to make all reasonable efforts to comply with Correia v. McDonald and Sharp v. Shulkin. In particular, the examiner is asked to describe whether pain has significantly limited functional ability during flares during the period between June 2016 and December 2018, and if so, the examiner must estimate range of motion during flares. THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES’ SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. All indicated tests and studies deemed necessary by the examiner should be accomplished. An explanation for all opinions expressed must be provided. The retrospective medical opinion must be reviewed by the RO to ensure that it is in complete compliance with the directives of this remand. Specifically, as explained above, if the examiner is unable to provide an opinion or cannot do so without resorting to speculation, the examiner should explain why. If the retrospective medical opinion is found to be deficient in any manner, the RO must implement corrective procedures at once. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura C. Owens 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.