Citation Nr: 21030952 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 08-23 731 DATE: May 20, 2021 REMANDED Entitlement to a rating higher than 10 percent for degenerative joint disease of the left knee (other than the time period from September 9, 2014 to October 31, 2014 during which a temporary total rating was assigned) is remanded. Entitlement to a total disability based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1988 to July 1989. This matter comes before Board of Veterans' Appeals (Board) on appeal from October 2007 and December 2008 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The issues were previously denied by the Board in May 2012. The Veteran filed an appeal with the Court of Appeals for Veterans Claims (CAVC) and an April 2013 Joint Motion for Remand (JMR) returned the issues to the Board for further adjudication. The Board most recently remanded the matter for a new VA knee examination in June 2020, with specific directives for the examiner to address findings in line with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) and DeLuca v. Brown, 8 Vet. App. 202 (1995). While a new VA knee examination was obtained in January 2021, the January 2021 examiner did not address all of the relevant June 2020 remand directives; therefore, the Board finds that the remand instructions were not substantially complied with and further remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, in the June 2020 remand, the Board ordered the examiner to (a) test active motion, passive motion, pain with weight-bearing, and pain with non-weight-bearing; (b) describe whether and to what extent pain significantly limits functional ability during flare-ups; and (c) provide retrospective findings in regard to pain on range of motion testing and an estimation of functional loss for the entire appeal period. The January 2021 examiner sufficiently tested active motion, passive motion, pain with weight-bearing, and pain with non-weight-bearing, and sufficiently described functional loss during flare-ups, but did not provide retrospective findings regarding range of motion testing or functional loss as requested, nor did he explain why retrospective findings were not provided. A remand by the Board imposes upon the Secretary of VA a duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall, 11 Vet. App. at 271. The Board finds that there has not been substantial compliance with its previous remand directives based on the lack of retrospective findings. As such, the matter must be remanded for retrospective findings, or, at least, an adequate explanation of why such findings cannot be provided. Additionally, because a decision on the Veteran's left knee claim could significantly impact a decision on entitlement to a total disability based on individual unemployability (TDIU), the issues are inextricably intertwined. A remand of the TDIU claim is also necessary The matters are REMANDED for the following action: Return the Veteran's file to the January 2021 VA examiner (or another appropriate medical professional if he is unavailable) for further review and an addendum medical opinion. A new examination is not required unless the examiner determines one is necessary to provide the request opinions. The examiner should review the medical evidence, including the August 2007 VA examination, August 2008 VA examination, March 2009 VA examination, October 2013 VA examination, February 2016 VA examination, May 2018 DBQ submitted by the Veteran, and private medical records from Dr. D. received in November 2015 October 2020, and provide a retrospective medical opinion (if practicable) as to: Whether additional functional loss resulted due to flare-ups and/or repeated use during these examinations. If feasible, the examiner should assess the additional functional impairment in terms of degree of additional range of motion loss. In providing this opinion, the examiner should discuss the entire appeal period from 2007 to present, accounting for fluctuations in the severity of the condition over time, if appropriate. If the examiner is unable to provide the requested opinion, he or she should clearly explain why. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Tierno 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.