Citation Nr: 21029509 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 08-16 134 DATE: May 13, 2021 REMANDED Entitlement to an evaluation in excess of 30 percent for status post hemi-patellectomy, total knee replacement (previously separately rated as chondromalacia, left patella, with status post hemi-patellectomy and left knee instability (left knee disability) prior to October 14, 2010, is remanded. REASONS FOR REMAND The Veteran had active military service in the United States Navy from December 1974 to April 1985. This matter came before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2009, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). In November 2009, February 2011, and September 2013, the Board remanded the claim for additional development. In September 2015, the Board denied entitlement to a disability rating in excess of 10 percent for left knee chondromalacia of the left patella with status post hemi-patellectomy prior to October 14, 2010. The Veteran appealed the Board's September 2015 decision to the United States Court of Appeals for Veterans Claims (Court), which in an April 2016 order, granted the parties' joint motion for remand, vacating the Board's September 2015 decision and remanding the case for compliance with the terms of the joint motion. In August 2016, the Board remanded the claim for additional development. In August 2017, the Board denied a disability rating in excess of 10 percent for left knee chondromalacia prior to October 14, 2010. After an August 2017 Board decision denied an increased evaluation for a left knee disability, the Veteran subsequently appealed the decision to the Court. In April 2018, the Court issued an order that vacated the Board's decision and remanded the claim to the Board. The Board remanded the claim in October 2018 for compliance with the Court's April 2018 order. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the CAVC decision or explain why the terms will not be fulfilled. Increased Rating Prior to October 10, 2010 The Veteran seeks an increased rating for his left knee disability. Prior to October 10, 2010, the Veteran received a 30 percent rating under DC 5055. During the course of this appeal, in a May 2017 rating decision, the RO increased the rating for the Veteran's left knee disability from 20 percent to 30 percent from April 23, 1985. In a June 2007 statement, the Veteran reported that his knee hurts constantly, he had trouble putting on his shoes, he could not pick up his feet due to his knees, he had pain when climbing stairs or a ladder and squatting, and problems getting dressed. He also reported increased pain with twisting or squatting, his knees lock in a certain position at times when walking, he had pain in his knee when walking, and it was very painful for him to stand from a seated position. At the June 2007 VA examination, the Veteran reported that one a scale of one to ten, he had pain of four or five, and eight to nine with flare ups. He reported his pain was aggravated by walking downstairs or prolonged standing greater than 20 minutes. He reported a history of swelling and popping, but no locking. He used a brace and occasionally used a cane. The examination showed range of motion from 0 degrees to 120 degrees with active and passive range of motion being the same and no change with repetition. The examiner noted there was pain throughout the full arc of motion. At the January 2009 VA examination, the Veteran reported pain of eight out of ten, with flare ups to ten out of ten upon movement of his leg, standing, sitting, climbing, walking, and getting up from the bed, chair, toilet, or tub. He used a cane. He reported that he was only able to ambulate approximately 15 minutes before his knees bother him to the point where he needs to stop. The examinations show range of motion from 0 degrees to 90 degrees actively and passively with pain through the arc of motion. Upon repetition, range of motion is the same, but there is increased pain. The examiner specifically states, to address the DeLuca provisions, there was no pain with range of motion testing. He further notes that it is conceivable that pain could further limit function as described particularly after being on his feet all day. He notes it is not feasible, however, to attempt to express any of this in terms of additional limitation of motion as these matters cannot be determined with any degree of medical certainty. At the Veteran's September 2009 Board hearing, his representative testified that the pain and overall condition of his knees prevent him from walking extended distances and performing normal, daily activities, both at work and at home. The Veteran testified that the pain gets worse throughout the day and he cannot move his leg in any position without pain. At the March 2010 VA examination, the Veteran reported pain of eight out of ten and that he uses braces bilaterally and a cane. He reported that he was able to walk less than 15 minutes or 50 feet and he had daily flare ups. He reported that he was unable to walk, stand, and bend his knees. Upon examination, his active range of motion lacked 5 degrees of extension and flexion was 70 degrees with pain. After repetition, neither pain nor range of motion changed. The examiner did not estimate the Veteran's loss of range of motion during flare-ups. In September 2013, the claims file was sent to a VA examiner for a retrospective medical opinion as to how the Veteran's left knee range of motion was affected by pain for the period on appeal prior to October 14, 2010. The September 2013 VA medical provider reviewed the January 2009 VA examination and determined that, at that time, range of motion was from 0 to 90 degrees. He noted the Veteran was able to complete repetitive motion testing. He noted that the Veteran had increased pain after repetitive motion; however, he did not have or any loss of degrees of range of motion following repetitive testing. He further notes there was no evidence of fatigability, incoordination, or weakness present. He notes that, at that examination, pain started only after the Veteran achieved 90 degrees of flexion. Based on his review of the January 2009 VA examination, the September 2013 VA examiner determines the Veteran did not experience functional loss due to pain with repetitive use as he did not lose any range of motion in degrees with repeated use. Pursuant to the August 2016 remand directives, an additional retrospective medical opinion regarding how the Veteran's left knee range of motion was affected by pain prior to October 14, 2010 was obtained in March 2017. The March 2017 VA examiner notes that he reviewed the medical records and determined that it would be mere speculation at this point for him to give an opinion and to specifically state whether, and to what extent, the Veteran experienced likely functional loss due to pain and/or any of the other symptoms during flare ups and/or with repeated use, and/or additional functional loss in terms of additional degrees of limited motion. He noted that there are no records showing progressive and/or documentation of quantitative range of motion during repeated use, extended use, and flare ups during the period in question. Therefore, without records showing quantitative degree of motion for the period on appeal prior to total left knee arthroplasty in December 2010, it would be mere speculation and/or feasibly impossible to know the objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination ,pain on motion or at what point pain began or to what extent, the Veteran experienced likely functional loss due to pain and/or any of the other symptoms noted during flare ups and/or with repeated use Following, the Court decision vacating the Board's earlier decision, the Board again remanded the claim for a retrospective opinion to assess the Veteran's level of functioning, including in terms of range of motion, prior to October 19, 2010. The September 2020 VA examiner opined that the Veteran was status post bilateral arthroscopy as of June 5, 1984 with a stated range of motion (ROM) of 15 to 135 degrees. Given that this was after his arthroscopy, this range of motion reading would serve as the baseline reading for April 23, 1985. The Veteran experienced paucity of complete knee shown in examinations until December 19, 2002. At that time, his ROM was 0 to 125 degrees. This degree range of motion shows a long-term improvement of extension of 15 degrees back to a normal baseline. However, a further 10 degrees loss of flexion is noted over that time period (1985-2002). The examiner opined as there are no records to show a deviation during the long span from 1985 to 2002, this ROM would serve as the objective evaluation for that time period. The multiple VA examinations during this time period serve as interim evaluations. For 2005, the ROM appears to have been 40 to 100 degrees and 0 to 120 degrees for 2007, essentially unchanged from 2002, allowing for inter-examiner variation. However, VA examinations in 2009, 2010, 2011 show consistently decreased ROM varying from 0 to -10 degrees extension 90 to 60 for flexion. For the Veteran's January 3, 2009 note it appears the 2007 exam was discrepant with respect to ROM. Unless there is some explanation for the variation, the assumption for this rationale is the continuum from the 2005 examination through the exam dated March 2010, eliminating the 2007 value. Thus, the endpoint for left knee ROM as of March 9, 2010, prior to the total knee replacement was 5-70 degrees, 70-5 degrees. This still renders a conundrum with respect to 2000 to 2005, as the 2005 values seem a little askew. However, upon review of the actual exam, it appears the medical provider was proficient and thorough. Regardless it appears there was a worsening from December 2002 and November 2005. Fluctuations in condition would be expected and variations between examiners are common and this likely explains the difference from exam to exam. In general, the objective evidence supports a loss ROM occurring between 2002 and 2005 continuing until surgery in 2010. While this opinion is very thorough, it does not address the key reasons for the Court's previous vacate of the Board's decision. Notably, in the previous Board remand, the Board specifically asked that the VA examiner opine as to the effect of the Veteran's flareups on his functioning, specifically highlighting ROM during flareups. The September 2020 VA examiner's opinion provides a very thorough explanation for the Veteran's ROM at various points throughout his disability but does not address flareups. As a result, remand is warranted. However, a Court remand confers on a claimant as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). Thus, remand is appropriate. The matters are REMANDED for the following action: Send the Veteran's claims folder to the examiner for a retrospective medical opinion as to how the Veteran's left knee range of motion was affected by pain and flareups for the period on appeal prior to total left knee arthroplasty in December 2010. The examiner should specifically state whether, and to what extent, the Veteran experienced likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use, to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion, including any additional range of motion loss during flareups. If such detail cannot feasibly be provided, the examiner should provide an explanation as to why such detail cannot feasibly be provided STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ijitimehin, Kemi D. 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.