Citation Nr: 21031482 Decision Date: 05/22/21 Archive Date: 05/22/21 DOCKET NO. 08-26 718 DATE: May 22, 2021 REMANDED For the period prior to June 15, 2009, an evaluation higher than 10 percent for the Veteran's service-connected left knee disability, limitation of extension, is remanded. For the period prior to June 15, 2009, an evaluation higher than 10 percent for the Veteran's service-connected left knee disability, limitation of flexion, is remanded. For the period prior to June 15, 2009, an evaluation higher than 10 percent for the Veteran's service-connected left knee disability, instability, is remanded. REASONS FOR REMAND This appeal initially came to the Board of Veterans' Appeals (Board) from a March 2007 rating decision. In July 2012, the Board denied entitlement to an evaluation higher than 10 percent for the Veteran's left knee disability prior to June15, 2009. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In February 2014, the Court issued a Memorandum Decision vacating and remanding the Board's denial. After remanding the claim for additional development in October 2014, the Board again denied the claim in November 2015. After the Veteran appealed this decision, in September 2016, the Court issued an order granting a September 2016 Joint Motion for Remand (JMR). After remanding the claim for additional development in August 2017, in August 2019, the Board denied the Veteran's claim for ratings in excess of 10 percent for limited left knee flexion and in excess of 10 percent for left instability prior to June 15, 2009 and granted a 10 percent rating, but no greater, for the Veteran's left knee limited extension prior to June 15, 2009. The Veteran again appealed this decision to the Court, and the Court issued an August 2020 order granting a JMR for partial remand, specifically vacating the Board decision denying a rating in excess of 10 percent for left knee limited extension, a rating in excess of 10 percent for left knee limited flexion, and a rating in excess of 10 percent for left knee instability, prior to June 15, 2009. In the August 2020 JMR, the parties agreed that a May 2019 VA medical opinion was inadequate as it did not substantially comply with the Board's October 2014 and August 2017 remand directives. In October 2014 and August 2017 remands, the Board had ordered that an addendum VA opinion be obtained regarding the Veteran's left knee symptoms documented in May 2006 and March 2009 VA examinations with respect to the nature and severity of the Veteran's service-connected left knee disability prior to June 15, 2009. Specifically, the Board ordered that the examiner provide a range of motion for the Veteran's left knee, to include limitation due to pain and during a flare-up. The Board also ordered that the examiner should state whether limitation or motion or other functional loss was experienced. In February 2021, the Board remanded this matter for a new medical opinion. The claims for higher disability ratings for the left knee disability prior to June 15, 2009, to include for: (1) an evaluation higher than 10 percent for limitation of extension, (2) an evaluation higher than 10 percent for limitation of flexion, and (3) an evaluation higher than 10 percent for instability are remanded. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issues on appeal. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). In February 2021, the Board remanded for a retrospective opinion. A March 2021 addendum VA opinion addressed the Veteran's left knee symptoms documented in May 2006 and March 2009 VA examinations with respect to the nature and severity of the Veteran's service-connected left knee disability prior to June 15, 2009. The new addendum, however, does not fully address all the directives made by the Board regarding a new opinion. As noted in the April 2021 written brief presentation, the March 2021 VA medical opinion provider did not address the Veteran's instability, had not tailored the opinion to the Veteran, and had not included consideration of additional loss of motion due to weakened movement, excess fatigability, diminished endurance, incoordination, or duration of flare-ups. As such, another addendum VA medical opinion is necessary. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate examiner as to the nature and severity of the Veteran's service-connected left knee disability [to include (a) extension, (b) flexion, and (c) instability] prior to June 15, 2009. After reviewing the May 2006 and March 2009 VA examinations, as well as any other pertinent evidence of record to include VA and private medical records and lay statements from the Veteran (such as from January 2006, May 2007, and September 2008) - the examiner should opine whether the Veteran's pain would significantly limit functional ability during flare-ups or when the left knee is repeatedly used over time. The examiner should report the additional functional loss in terms of the degree of additional range of motion loss due to (i) pain on use, (ii) weakened movement, (iii) excess fatigability, (iv) diminished endurance, (v) incoordination, and (vi) during flare-ups. As noted in the April 2021 written brief presentation, the March 2021 VA medical opinion provider did not address instability, did not tailor the opinion specific to the Veteran's circumstance, and had not included consideration of additional loss of motion due to weakened movement, excess fatigability, diminished endurance, incoordination, or duration of flare-ups. A full rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so and list any additional information that would be helpful in clarifying the Veteran's left knee disability prior to June 15, 2009. In so doing, the examiner shall explain (i) whether the inability to provide a more definitive opinion is the result of a need for additional information (for example, the need to obtain a more thorough history from the Veteran) OR (ii) that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). If the examiner needs additional information from the Veteran, he or she must contact the Veteran to obtain that information. If the examiner cannot contact the Veteran, all efforts to make contact should be documented. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Lindio 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.