Citation Nr: 22010517 Decision Date: 02/23/22 Archive Date: 02/23/22 DOCKET NO. 14-23 756 DATE: February 23, 2022 REMANDED Entitlement to an initial disability rating higher than 10 percent for right eye epiphora is remanded. Entitlement to an initial disability rating higher than 10 percent for superficial peroneal nerve injury of the left lower extremity is remanded. Entitlement to an initial disability rating higher than 10 percent for right hip trochanteric pain syndrome is remanded. Entitlement to an initial disability rating higher than 10 percent for right knee patellofemoral syndrome prior to February 24, 2020 is remanded. Entitlement to a disability rating higher than 20 percent for right knee patellofemoral syndrome from February 24, 2020 is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from April 1986 to October 1990. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) and were previously remanded by the Board in February 2018. In April 2017, the Veteran testified at a videoconference Board hearing before the undersigned. Following the Board's February 2018 remand, the Veteran requested another Board hearing in September 2018. A travel Board hearing was scheduled for October 27, 2021. The Veteran failed to appear for his scheduled hearing and has not provided good cause for his failure to appear. Therefore, the Board finds that the Veteran's hearing request has been withdrawn and the appellate review may proceed. 38 C.F.R. § 20.704(d). In a June 2021 rating decision, the RO assigned a 20 percent disability rating for right knee disability effective February 24, 2020. As the rating periods regarding the right knee issues prior to and from February 24, 2020 are not the maximum allowable, the issues remain on appeal. AB. v. Brown, 6 Vet. App. 35 (1993). The Board's February 2018 remand directed the RO to afford the Veteran new VA examinations for his increased rating claims as to the right knee, right hip, right eye, and superficial peroneal nerve injury of the left lower extremity. VA examinations as to those issues were conducted in June 2018 and August 2018, and a supplement statement of the case (SSOC) was issued in August 2018. However, since the August 2018 SSOC, additional VA examinations were conducted in August 2020 and March 2021 as to the Veteran's right eye and right knee. Moreover, relevant VA treatment records from 2018 to the present were associated with the Veteran's claims file from 2018 to the present. However, the RO did not readjudicate the Veteran's increased rating claims as to the right eye, right knee, right hip and superficial nerve injury of the left lower extremity and issue the Veteran a new SSOC as to these issues. As such, a remand is required. 38C.F.R. §19.31. Further, during the June 2018 VA examinations, the Veteran reported experiencing flare-ups in his right hip and right knee. As to his right hip, he stated that he experiences right hip pain that contributes to problems with mobility, walking up and down an incline, prolonged standing and sitting, and range of motion loss. Regarding his right knee, he indicated that his constant knee pain contributes to range of motion loss, as well as problems with mobility, standing, and going up and down an incline. Although the examiners found that pain, fatigue, weakness, and lack of endurance significantly limit functional ability with reported right hip and right knee flare-ups, the examiners did not estimate range of motion loss based on the Veteran's reported right hip and right knee flare-ups and their impact. For this reason, the Board finds that a remand is necessary to obtain retrospective medical opinions addressing limitation of motion during flare-ups of the Veteran's right hip and right knee. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Lastly, the Veteran's claim for a TDIU is inextricably intertwined with the foregoing issues, and so disposition of the issue is deferred. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on a veteran's claim for the second issue). The matters are REMANDED for the following action: 1. Send the Veteran's claims file to an appropriate medical professional to obtain retrospective medical opinions regarding the severity of his service-connected right knee prior to February 24, 2020 and his service-connected right hip. The Veteran's electronic claims file must be made accessible to the designated professional for review. A detailed rationale for any opinions expressed should be provided. Following the review of the claims file, the medical opinion provider is then requested to respond to the following: a. As to the Veteran's right knee, provide a retrospective medical opinion regarding the extent of the Veteran's functional loss (i) after repetition over time and, separately, (ii) during flare-ups for the period prior to February 24, 2020. The medical opinion provider should determine the additional functional loss the Veteran suffered during right knee flare-ups and after repetition over time by utilizing information in the medical records or other sources available to the examiner such as the June 2018 VA examination report, to include the Veteran's reported symptoms, and VA and private treatment records from the same period. To the medical opinion provider's best ability, the additional range of motion loss should be described in degrees based on that information. Even if the Veteran was not being observed during a flare-up or after repeated use over time during the above-mentioned examinations, the medical opinion provider should still estimate any additional functional impairment based on the evidence of record and the Veteran's lay descriptions of repeated use or flares' severity, frequency, duration, and/or functional loss manifestations. If the medical opinion provider cannot estimate the degrees of additional range of motion during flare-ups prior to February 24, 2020, without resorting to speculation, he or she should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge or by a deficiency in the record or the medical opinion provider. b. As to the Veteran's right hip, provide a retrospective medical opinion regarding the extent of the Veteran's functional loss (i) after repetition over time and, separately, (ii) during flare-ups. The medical opinion provider should determine the additional functional loss the Veteran suffered during right hip flare-ups and after repetition over time by utilizing information in the medical records or other sources available to the examiner such as the September 2015 and June 2018 VA examination reports, to include the Veteran's reported symptoms, and VA and private treatment records. To the medical opinion provider's best ability, the additional range of motion loss should be described in degrees based on that information. Even if the Veteran was not being observed during a flare-up or after repeated use over time during the above-mentioned examinations, the medical opinion provider should still estimate any additional functional impairment based on the evidence of record and the Veteran's lay descriptions of repeated use or flares' severity, frequency, duration, and/or functional loss manifestations. If the medical opinion provider cannot estimate the degrees of additional range of motion during flare-ups, without resorting to speculation, he or she should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge or by a deficiency in the record or the medical opinion provider. If the requested opinions cannot be provided without a new examination, one should be scheduled. 2. Readjudicate the Veteran's increased rating claims as to his right eye, right hip, right knee prior to February 24, 2020, right knee from February 24, 2020, and superficial peroneal nerve injury of the left lower extremity, to include the intertwined issue of entitlement to a TDIU. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished with a SSOC, given the opportunity to respond, and the case should be thereafter returned to the Board for further appellate review, if warranted. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Houle, 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.