Citation Nr: 22012841
Decision Date: 03/07/22	Archive Date: 03/07/22

DOCKET NO. 11-16 849
DATE: March 7, 2022

REMANDED

Entitlement to a disability rating in excess of 10 percent for the service-connected posttraumatic osteoarthritis of the left knee prior to April 26, 2021, is remanded.

REASONS FOR REMAND

The Veteran served on active duty from March 1981 to August 1992.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

In September 2017, the Board denied entitlement to increased disability ratings for the left knee.  The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court).  In December 2018, the Court granted a Joint Motion for Remand (JMR), vacating the September 2017 Board decision and remanding the matter to the Board.  The Board previously remanded the matter in July 2019, March 2021 and August 2021.  

Unfortunately, there has not been substantial compliance with the Board's prior remand directives.  Pursuant to the August 2021 Board remand, a retrospective opinion was requested to address whether the ranges of motion for the Veteran's left knee since May 2008 reflected weight-bearing or nonweight-bearing testing and whether the ranges of motion during the June 2008 VA examination were in weight-bearing and in active motion.  

A retrospective opinion was obtained in October 2021 and the examiner stated that after review of the VA examination in [June] 2008, during the comprehensive assessment the provider stated, "Upon standing, patient walked on heels and toes."  However, the October 2021 examiner stated that without being present, a determination as to whether that was part of the knee examination cannot be made without speculation.  The examiner further stated that upon review of the remand letter, and the multiple left knee examinations contained in the claims file, as to whether the range of motion documented for the Veteran's left knee since May 2008 were tested to reflect weight-bearing or nonweight-bearing, it cannot be determined due to inadequate medical documentation available and cannot be determined with general medical knowledge.  The examiner noted that the provider in 2008 did not document that pain was elicited on weight-bearing; however, the more current examinations do reflect pain on weight-bearing.  However, the examiner did not address whether the ranges of motion on the June 2008 examination were in active motion as instructed by the Board's August 2021 remand directives. 

Consequently, remand is required to obtain a retrospective opinion to ensure substantial compliance with the Board's August 2021 remand instructions.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

The matters are REMANDED for the following action:

1. Send the Veteran's claims file to a VA orthopedic physician to obtain a retrospective opinion regarding the Veteran's service-connected posttraumatic osteoarthritis of the left knee prior to April 26, 2021.  If an examination is required in order to respond to the request, such should be scheduled.

Following review of the claims file, the examiner should respond to the following:

(a.) Based on review of the medical evidence, state whether the ranges of motion for the Veteran's left knee since May 2008 reflect weight-bearing or nonweight-bearing testing.

(b.) Review the June 2008 VA examination and state whether the ranges of motion in the report were in weight-bearing and in active motion.  See June 2008 VA examination. 

 

Timothy Berryman

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Medina

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.