Citation Nr: 21029060 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 10-12 087 DATE: May 12, 2021 REMANDED Entitlement to a rating in excess of 10 percent prior to April 6, 2009 based solely on limitation of left knee flexion, and in excess of 30 percent beginning June 1, 2010 status post left knee replacement, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1979 to September 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in July 2016, April 2017, May 2018, and September 2019. Unfortunately, another remand is required. Pursuant to the Board's most recent remand directives in September 2019, the Veteran was afforded a VA examination in November 2020. In addition to examining the Veteran for the current severity of his left knee disability, the Board asked the examiner to provide an opinion as to the range of left knee motion from January 14, 2009 to February 6, 2019 in (1) active motion, (2) passive motion, (3) weight-bearing, (4) and non-weight-bearing. Also, the examiner was asked to provide an opinion describing functional impairment of the Veteran's left knee due to flare-ups for the period from January 14, 2009 to February 6, 2019, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. The Board further noted, if the examiner is unable to provide such opinions without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] Veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. A November 2020 VA examination addendum report was added to the file. The examiner determine the active range of motion measurements consisted of left knee flexion limited to 90 degrees and normal extension. However, the report also noted extension is limited to 10 degrees. There was additional loss in range of motion with repetitive motion consisting of flexion limited to 80 degrees and left extension limited to 10 degrees. The examiner noted, "to the question of what extent, if any, flare-ups affect functional impairment: The medical evidence is not sufficient to support a determination of what extent, if any, flare-ups affect functional impairment." Although left knee ranges of motion (ROM) were listed on the VA examination, the Board needs clarity whether the findings were estimated for the January 14, 2009 to February 6, 2019 appeal period or current ROMs. Also, the examiner did not provide ROM for the passive, weight bearing, and non-weight bearing as required by Correia v. McDonald, 28 Vet. App. 158 (2016). As it relates to the functional impairment of the Veteran's left knee due to flare-ups for the period from January 14, 2009 to February 6, 2019 question, the November 2020 VA examiner opined the medical evidence of record was not sufficient to support a determination of what extent, if any, flare-ups affect functional impairment. However, the examiner did not discuss the consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] Veteran," as well as the specific facts that cannot be determined. Thus, a remand is now needed to ensure substantial compliance with the Board's September 2019 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from a VA examiner other than the February 2019 examiner. The entire claims file should be made available to and be reviewed by the examiner. The examiner should address the following after reviewing the February 2009, March 2016, December 2017, and November 2020 left knee examination reports of record: a. Please provide an opinion as to the range of left knee motion from January 14, 2009 to February 6, 2019 in (1) active motion, (2) passive motion, (3) in weight-bearing, (4) and in non-weight-bearing. Please specify range of motion measurements in all areas outlined above. If the examiner is unable to provide such an opinion, he or she should clearly explain the basis for that conclusion. b. Considering the Veteran's reported history, please also provide an opinion describing functional impairment of the Veteran's left knee due to flare-ups for the period from January 14, 2009 to February 6, 2019, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] Veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. 2. Conduct any other development deemed necessary and then readjudicate the Veteran's claim. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or United States Court of Appeals for Veterans Claims must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jackman, 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.