Citation Nr: 21026272 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 14-34 377A DATE: April 30, 2021 REMANDED Entitlement to a rating in excess of 10 percent for a right knee disability prior to October 7, 2009, and a rating in excess of 30 percent as of December 1, 2010, is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from March to July 1964. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2018, the Veteran testified at a hearing before the undersigned. In May 2018, July 2018, August 2020, and January 2021, the Board remanded this matter for further development. The case has been returned to the Board at this time for further appellate review. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 1. Entitlement to a rating in excess of 10 percent for a right knee disability prior to October 7, 2009, and a rating in excess of 30 percent as of December 1, 2010, is remanded. In August 2020 and January 2021, this matter was remanded to obtain a retrospective opinion so that the Board can make an informed decision on the Veteran’s appeal of the initial rating assigned for his right knee disability. Specifically, it was determined that there is no sufficient VA examination reflecting the Veteran’s functional limitations prior to his October 2009 partial knee arthroplasty. Thus, the Board directed the VA examiner to address the severity of the Veteran’s right knee disability from June 1, 2004, to October 6, 2009. In addition, the VA examiner was advised that, if any of the issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. A retrospective opinion was obtained in February 2021. The VA examiner stated that, regarding looking back into the past to assess the Veteran’s previous disability, this is not possible. The VA examiner also stated that they were not present with the Veteran during any time between June 1, 2004 and October 6, 2009, and they did not perform any examination on the Veteran during that time period. Therefore, the examiner stated they could only indicate objective evidence of functional loss based on their current exam. The Board finds the February 2021 retrospective opinion to be inadequate. Although the opinion is not completely clear, it appears as though the VA examiner is essentially stating that they cannot provide an opinion without resorting to speculation. However, the VA examiner did not provide a detailed medical explanation as to why this is so, as was directed. Accordingly, remand is warranted for a new VA opinion. 2. Entitlement to TDIU is remanded. The issue of entitlement to TDIU is inextricably intertwined with the claim of entitlement to an increased rating for the Veteran’s right knee disability, and therefore, is remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The matters are REMANDED for the following action: Obtain a retrospective opinion regarding the Veteran’s increased rating claim for his service-connected right knee disability, with an examiner who has not previously opined as to the Veteran’s claim. If deemed necessary by the clinician selected to provide the opinion, schedule a telehealth appointment or in-person examination to elicit a history from the Veteran regarding his right knee symptoms. Specifically, the clinician must address the severity of the Veteran’s right knee disability from June 1, 2004, to October 6, 2009 (the period prior to his knee surgery). The Board is cognizant of the limited medical records pertaining to the right knee for this time period. This is why the Board needs expert assistance from a medical professional in estimating the degree of impairment in the Veteran’s right knee for this time period. The Board also recognizes that the examiner will most likely not have seen the Veteran during the time period from June 1, 2004, to October 6, 2009. This is why the Board needs the examiner to review the limited medical records from that time period, as well as the Veteran’s lay statements, to provide an estimate of the degree of impairment in the Veteran’s right knee during the time period in question. Based on the Veteran’s lay statements and the other evidence of record, the selected examiner should provide an estimate as to range of motion in the right knee from June 1, 2004 to October 6, 2009. If the examiner cannot use the Veteran’s lay statements and the other evidence of record to provide an estimate as to range of motion in the Veteran’s right knee from June 1, 2004 to October 6, 2009 without resorting to speculation, the examiner should state, with specificity, whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time for the time period from June 2004 to October 2009 (prior to the surgery). If the examiner cannot use the Veteran’s lay statements and the other evidence of record to provide an estimate of the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Elias, Associate 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.