Citation Nr: 21031578 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 12-12 137 DATE: May 24, 2021 REMANDED The appeal for an increased disability rating in excess of 10 percent from July 27, 2009, to prior to April 14, 2011, and from August 1, 2011, to prior to July 8, 2013, excluding periods of temporary total disability, for service-connected degenerative joint disease (DJD) of the left knee status-post medial meniscectomy is remanded. The appeal for an increased disability rating in excess of 30 percent from September 1, 2014, for service-connected left total knee arthroplasty is remanded. Entitlement to a total disability evaluation based on individual unemployability (TDIU), for the period on appeal prior to August 5, 2020, is remanded. REASONS FOR REMAND The Veteran had active duty service from August 1986 to August 1990, and October 1990 to November 1990. In May 2018, the Board denied claims for higher evaluations for a left knee disability and entitlement to a TDIU. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2019 Order, the Court a vacated and remanded the issues for readjudication consistent with the terms outlined in a Joint Motion for Remand (JMR). In November 2019, the Board remanded the case in compliance with the Veterans Court's order. Thereafter, in January 2021, the Board again remanded the case due to a lack of substantial compliance with the November 2019 remand. In a March 2021 rating decision, the Agency of Original Jurisdiction (AOJ) granted entitlement to TDIU, effective August 5, 2020. However, as the claim for a higher evaluation for a left knee disability is on appeal during periods prior to August 5, 2020, and the claim for TDIU was raised as due to the service-connected left knee disability, the claim for TDIU, for the period prior to August 5, 2020, remains on appeal. See Harper v. Wilkie, 30 Vet. App. 356 (2018). The claim has been recharacterized as listed above. 1. The appeal for an increased disability rating in excess of 10 percent from July 27, 2009, to prior to April 14, 2011, and from August 1, 2011, to prior to July 8, 2013, excluding periods of temporary total disability, for service-connected DJD of the left knee status-post medial meniscectomy is remanded. 2. The appeal for an increased disability rating in excess of 30 percent from September 1, 2014, for service-connected left total knee arthroplasty is remanded. Th claims must be remanded again for an adequate examination. The January 2021 examination conducted after the prior remand is inadequate because it does not include sufficient findings for range of motion. The examiner did not report the ranges of motion ascertained during passive range of motion testing. More important, however, is that the examiner did not provide an adequate retrospective opinion. Although the parties to the JMR agreed that the September 2009 and January 2016 VA medical examinations were inadequate and identified intervening medical procedures during the period on appeal, the examiner's retrospective opinion consisted solely of repeated findings of the September 2009 and January 2016 examinations. Finally, there was no inclusion of the examiner's credentials beyond a notation of the examiner's degree and position. Therefore, the claims are remanded for adequate examinations. Correia v. McDonald, 28 Vet. App. 158 (2016); Stegall v. West, 11 Vet. App. 268 (1998). 3. Entitlement to a TDIU, for the period on appeal prior to August 5, 2020, is remanded. Adjudication of the claim for a TDIU, for the period prior to August 5, 2020, is deferred as inextricably intertwined with the claims remanded herein. The Veteran receives consistent care from VA. On remand, attempts must be made to obtain and associate with the claims file VA treatment records regarding the Veteran that are dated since February 2021. See 38 C.F.R. § 3.159. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from February 2021 to the present. 2. Thereafter, schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to include retrospectively, addressing the severity of the Veteran's service-connected left knee disability, from July 2009 to present. The claims folder should be made available to the examiner for review before the examination. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted at this time, and included in the examination report. The examiner's credentials MUST be documented in the examination report. The examiner must provide a retrospective opinion, addressing the severity of the Veteran's service-connected left knee disability, from July 2009 to present. In doing so, the examiner must provide all findings, to include ranges of motion of the left knee in active motion, passive motion, weight-bearing, and non-weight bearing. The examiner should indicate whether there is weakened movement, excess fatigability, incoordination or pain. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should address whether at any time since June 2009 the Veteran's left knee disability manifested by limitation of motion (flexion/extension), ankylosis, recurrent subluxation or lateral instability, dislocated semilunar cartilage, symptomatic removal of semilunar cartilage, impairment of the tibia and fibula and/or genu recurvatum. The examiner should address the severity of any such manifestations during the applicable period. In answering this, the examiner must specifically discuss the medical evidence regarding the left knee, not limited solely to the VA examinations performed, and the Veteran's statement. The examiner should, to the extent possible, express an opinion as to whether the Veteran experienced additional limits of functional ability, to include on repeated use or flare-ups due to pain, weakened movement, incoordination or excess fatigability during the time period under review. The examiner should fully describe the severity of such functional limitation, if any, and should indicate whether such functional limitation resulted in additional degrees of limited motion, if possible. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. If the examiner determines that a decision cannot be made without resort to mere speculation, then it should be clear in the examiner's remarks as to why such is the case. In other words, simply stating that an opinion cannot be provided without resort to mere speculation is not acceptable without a detailed reason as to why this is so. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU for the period prior to August 5, 2020. M.E. LARKIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Robert J. Burriesci, 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.