Citation Nr: 21030191 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-22 339 DATE: May 18, 2021 REMANDED Entitlement to an evaluation in excess of 10 percent for degenerative arthritis, right knee prior to October 5, 2015 is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1985 to August 1989. This matter is before the Board of Veterans' Appeals (Board) on appeal from March 2013 and February 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, a hearing was held before the undersigned. A transcript of the hearing is of record. The Board, in a September 2019 decision, denied a rating in excess of 10 percent for degenerative arthritis, right knee prior to October 5, 2015 and awarded a separate 10 percent rating for right knee instability prior to October 5, 2015. The other issues currently on appeal were remanded for further development. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In a November 2020 order, the Court vacated the September 2019 decision as it pertained to the denial of a rating in excess of 10 percent for degenerative arthritis, right knee prior to October 5, 2015 and remanded the matter to the Board for further proceedings consistent with a Joint Motion for Partial Remand (JMPR). The JMPR specifically noted that it did not wish to disturb the Board's "separate 10 percent, but no higher, rating for instability of the right knee prior to October 5, 2015." Therefore, the Board finds that the rating for instability in the right knee prior to October 5, 2015 has been specifically excluded from the appeal and will not be further considered. In the November 2020 JMPR, the parties indicated that the Board did not discuss whether the June 2012 VA examination was adequate for rating purposes pursuant to Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), as an opinion as to range of motion during flare-ups was not provided. The Board also did not discuss whether a retrospective opinion was required to address a possible range of motion loss during flare-ups during the relevant time period. The Board recognizes that it may not be possible for a clinician to provide an opinion as to the past state of the Veteran's right knee disability with certainty. However, to ensure full compliance with the November 2020 JMPR, a retrospective medical opinion should be obtained. If the clinician concludes that it is not possible to provide a retrospective opinion without resort to speculation, the reason for this conclusion must be thoroughly explained. Additionally, VA treatment records were added to the record in July 2020. Included in these records are treatment records from October 2019, which indicate that the Veteran had been receiving treatment and injections for his knees from the Pain Treatment Centers of America for the past six to seven years. As there are no records from this facility in the claims file and they could provide evidence pertinent to the Veteran's right knee prior to October 5, 2015, an attempt should also be made on remand to obtain any outstanding treatment records from this facility. The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for the complete treatment records from Pain Treatment Centers of America. Make two requests for any authorized records unless it is clear after the first request that a second request would be futile. 2. After completion of the development ordered above, obtain a retrospective medical opinion from an appropriate clinician regarding the range of motion experienced during flare-ups during the June 2012 VA examination. The clinician must review the entire claims file, to include a copy of this remand. The need for an examination, including via telehealth, is left to the clinician's discretion. The examiner is asked, to the extent feasible, to express a retrospective opinion that addresses any additional functional loss due to flare-ups based on the Veteran's description of such during the June 2012 VA examination. In doing so, the examiner should opine as to i) the likelihood and degree that pain, weakness, fatigability, or incoordination caused additional functional impairment during flare-ups; and ii) assess additional functional impairment in terms of the degree of additional range-of-motion loss, if possible. The examiner must review the June 2012 VA examination, the Veteran's self-reports, the clinical records, and other evidence. The ameliorative effects of medications should not be considered. A complete rationale for all opinions must be provided. If the clinician is unable to provide a retrospective opinion as to functional impact of a flare-ups, he or she should clearly explain so in the report. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bonnie Yoon, 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.