Citation Nr: 21040560 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 11-31 815 DATE: July 6, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for a right knee disability, other than a temporary total rating for convalescence from September 30, 2019 to February 1, 2020, is remanded. Entitlement to an initial rating in excess of 10 percent for a left knee disability, other than a temporary total rating for convalescence from July 15, 2011 to October 1, 2011, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 2004 to January 2009. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2009 and September 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Veteran testified before the undersigned Veterans Law Judge during a Board video conference hearing. The Board notes these claims were before the Board in September 2018 in which the Veteran's increased rating claims for his left and right knee were denied. The Veteran appealed the September 2018 decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2019 joint motion for partial remand (JMPR), the Court vacated the September 2018 Board decision and remanded the matter for development consistent with the parties' Joint Motion. Specifically, the parties found that the Board erred in not ensuring that a November 2017 VA examination report sufficiently addressed the Veteran's functional impairments during flare-ups and on repetitive use. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The parties directed the Board to provide a compliant VA examination. Additionally, the parties, citing Chotta v. Peake, 22 Vet. App. 80, 85 (2008), directed the Board to obtain a retrospective medical opinion addressing this matter since a 2009 VA examiner also failed to provide the required findings. On April 2021, the Board remanded the Veteran's increased rating claims for bilateral knee disabilities pursuant to the parties' agreement in the September 2019 JMPR. While a VA examination for his bilateral knee disabilities was obtained on April 2021, the examiner did not provide a retrospective medical opinion as requested.. The matters are REMANDED for the following action: 1. Return the Veteran's claims file to the medical professional who provided the April 2021 VA examination his bilateral knee disability for an addendum opinion. If the examiner is unavailable, then another appropriate examiner is requested to review the claims file and to provide a retrospective opinion regarding the Veteran's bilateral knee disabilities in accordance to Sharp. The examiner is requested to attempt to estimate whether the Veteran experienced any additional functional loss during flare-ups or on repetitive use, in terms of degrees lost in range of motion, from the time of the Veteran's July 2009 claim. In doing so, the examiner must consider all the lay statements of record and provide the opinion based on any available information concerning the frequency, duration, characteristics, and severity of functional loss during flare-ups during this portion of the appeal period. If the examiner cannot provide this opinion without resorting to mere speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. After, readjudicate the claim. If the benefit sought on appeal remains denied, furnish the Veteran with a supplemental statement of the case (SSOC) and provide him with an appropriate opportunity to respond. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Xiong, Associate 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.