Citation Nr: 21041392 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 06-21 504 DATE: July 9, 2021 REMANDED Entitlement to an evaluation in excess of 10 percent for traumatic arthritis of the right knee, on the basis of substitution, is remanded. Entitlement to an evaluation in excess of 10 percent prior to April 29, 2005, and in excess of 20 percent thereafter for traumatic arthritis of the right ankle, on the basis of substitution, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1978 to October 1982. He died in March 2017, and appellant (the Veteran's former spouse) is seeking benefits as the custodian on behalf of their minor children, the substitute claimants in this case. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision by the Department of Veterans Affairs (VA). A hearing was held before the undersigned Veterans Law Judge in January 2009. A transcript of the hearing is included in the claims file. The Board remanded the above claims for further development in June 2010, July 2016, and February 2019, also addressing other claims on appeal at those times. The case has since returned to the Board for appellate review. In the February 2006 rating decision, the agency of original jurisdiction (AOJ) granted a 20 percent evaluation for the right ankle disability effective from April 29, 2005, the date of the claim for increase used at that time. In the February 2019 remand, the Board explained why the increased evaluation claims actually stem from a June 2003 written submission, rather than the April 2005 written submission. On review, the Board finds that additional development is necessary prior to final adjudication of the appellants' claims. The Veteran was last provided a VA examination in November 2016 in which the examiner noted some findings responsive to the Board's remand request. However, a remand is required to have an examiner determine whether it is possible to provide a retrospective medical opinion for that examination as to functional loss during flare-ups and after repeated use over time, given the Veteran's contentions and the inadequate rationale provided by the examiner in that regard. In addition, the examiner will have an opportunity to address the role, if any, the disabilities on appeal had on the Veteran's fall risk problems due to his inability to lift his feet high enough to avoid tripping and falling, as raised in the body of the same remand. The additional treatment records obtained when the case was most recently in remand status do not address these inadequacies. See Sharp v. Shulkin, 29 Vet. App. 26 (2017) and Chotta v. Peake, 22 Vet. App. 80 (2008) (when there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted); cf. Chavis v. McDonough, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660 (April 16, 2021). The case is REMANDED for the following actions: 1. The AOJ should refer the claims file to a suitably qualified VA examiner for a clarifying opinion as to the severity and manifestations of the Veteran's right knee and right ankle traumatic arthritis. It is noted that this is a request for a medical opinion only, as the Veteran died in 2017. The examiner is requested to review all pertinent records associated with the claims file. He or she should then provide an opinion with respect to the following for the November 2016 VA examination: (a) Whether any additional functional impairment that occurred during flare-ups and after repeated use over time, including any additional limitation of motion, can be estimated where not actually discussed (through the examination findings, review of the medical records, and/or history provided by the Veteran). If the examiner is unable to provide a retrospective opinion as to functional loss, he or she should provide an explanation in the report. It is noted that any inability to provide an estimate as to additional limitation of motion during flare-ups and/or after repeated use over time must be based on a lack of knowledge among the medical community at large (no one could respond given medical science and the known facts), rather than the examiner's inability to observe the Veteran during a flare-up and/or after repeated use over time alone. (b) Whether the Veteran's right knee and/or right ankle traumatic arthritis played a role in his fall risk problems due to his inability to lift his feet high enough to avoid tripping and falling, as documented in VA treatment records dated from 2012 to 2016. If these problems were due to symptoms of a nonservice-connected disorder alone (or a service-connected disability other than the right knee and/or right ankle traumatic arthritis), or if it is not possible to make this distinction, the examiner should so state and provide an explanation in the report. In this regard, an October 2012 VA treatment record shows that the Veteran had a recent fall and was considered to be a high fall risk; the high fall risk assessment was continued in March 2013. In an April 2014 VA treatment record, he reported having three falls since his last visit and was not picking his feet up high enough, causing him to trip and fall. In October 2015 to January 2016 VA treatment records, he was noted to be either a low or medium fall risk, with a rubber tip added to his cane. In an October 2016 VA treatment record, he was again noted to be a high fall risk, reporting a recent fall and flare-up of gout in his left foot. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. The AOJ should then readjudicate the case using the June 17, 2003 written statement from the Veteran in the claims file as the date of the claims for increase (already pending at the time of the April 2005 written statement originally used at the date of the claims for increase). ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Postek, 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.