Citation Nr: 22013532 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 13-18 848 DATE: March 9, 2022 REMANDED Entitlement to a rating in excess of 10 percent for right knee degenerative arthritis since November 3, 2016 is remanded. Entitlement to a rating in excess of 10 percent for right knee degenerative tears of the posterior horns of the medial and anterior meniscus and lateral meniscus since November 3, 2016 is remanded. Entitlement to a rating in excess of 10 percent for left knee degenerative arthritis since November 3, 2016 is remanded. Entitlement to a compensable rating for limited extension of the left knee is remanded. Entitlement to a rating in excess of 20 percent for low back pain syndrome with degenerative arthritis since May 31, 2008 and in excess of 40 percent since September 23, 2021 is remanded. REASONS FOR REMAND The Veteran had active duty service from December 1970 to September 1972. These matters are before the Board of Veterans' Appeals (Board) from a March 2009 rating decision of a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified at a Board hearing in December 2015. A copy of the transcript has been associated with the record. In November 2020, the Veteran was notified that the Veterans Law Judge who conducted the December 2015 hearing was no longer employed by the Board as a judge, and he was offered another hearing. However, in December 2020 the Veteran elected not to have another hearing. Therefore, a decision will be made considering the transcript of record. This appeal was most recently before the Board in February 2021, at which time it was remanded for additional development. The case has since returned to the Board for adjudication. Given that this appeal has been pending for many years, the Board sincerely apologizes for any additional delay in rendering a decision for these claims on appeal; however, to ensure the Veteran is afforded every opportunity to substantiate his claims, another remand is required. 1. Entitlement to a rating in excess of 10 percent for right knee degenerative arthritis since November 3, 2016 is remanded. 2. Entitlement to a rating in excess of 10 percent for right knee degenerative tears of the posterior horns of the medial and anterior meniscus and lateral meniscus since November 3, 2016 is remanded. 3. Entitlement to a rating in excess of 10 percent for left knee degenerative arthritis since November 3, 2016 is remanded. 4. Entitlement to a compensable rating for limited extension of the left knee is remanded. 5. Entitlement to a rating in excess of 20 percent for low back pain syndrome with degenerative arthritis since May 31, 2008 and in excess of 40 percent since September 23, 2021 is remanded. The Board is obligated to ensure substantial compliance with remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The February 2021 remand required the AOJ to obtain a medical opinion addressing certain evidence in the claims file and included specific questions for the examiner to answer. The resulting September 2021 VA examinations and October 2021 addendum opinions did not answer the questions posed by the Board in the previous remand, nor did it directly address the evidence as directed. Therefore, another remand is required for an adequate opinion. Specifically, the February 2021 remand required the VA examiner to review the November 2012, November 2016, August 2018, and September 2019 VA examinations of the Veteran's spine and knees, and provide a retrospective opinion addressing loss of ranges of motion during flare-ups and after repetitive movements. The examiner was requested to provide an estimate of the loss of range of motion and limitation of motion in degrees for the entire appeal period, dating back to May 2008. These opinions were not provided, making another remand necessary. Moreover, after the Board's last remand, the United States Court of Appeals for Veterans Claims (Court) issued a decision in April 2021 in the case of Chavis v. McDonough, 34 Vet. App. 1 (2021), regarding functional ankylosis when rating spine disabilities. The Board notes that the evidence raises a question as to whether the Veteran experiences functional ankylosis or has experienced it at any point during the appeal period. Specifically, in August 2018, the VA examiner indicated that the Veteran experienced stiffness in his back, and had difficulty bending over. He was noted to be able to stand only for 5 or 7 minutes and sit for 10 minutes. It is unclear, if based on these reports, the Veteran was capable of any other movements and for what time periods. Additionally, in September 2019, the Veteran reported that he used to be able play sports, but he could no longer run "or do anything." It is unclear if this reported inability is akin to functional ankylosis. Thus, remand is warranted to obtain a medical opinion regarding functional ankylosis in light of the Chavis decision. The Board would like to stress again that it regrets delaying this case longer; however, the VA is required to obtain adequate medical opinions and remand is necessary to ensure the VA fulfills that statutory duty to assist the Veteran. The matters are REMANDED for the following action: 1. Obtain a supplemental opinion from a suitably qualified examiner addressing the severity of the Veteran's service-connected lumbar spine and bilateral knee disabilities throughout the entire appeal period. Specifically, following review of the record, to include the VA examinations of record, and the previous Board remands, obtain a retrospective supplemental opinion from an appropriate VA clinician to estimate the Veteran's functional loss due to flares and after repetitive use over time due to his service-connected spine and knee disabilities. If the examiner determines that he or she cannot respond to the Board's inquiry as set forth in detail below without examination of the Veteran, the Veteran should be afforded such an examination, or by other means if an in-person examination is not feasible. (a.) In answering the above, the examiner should estimate the range of motion of the Veteran's spine during a flare-up and after repetitive use over time based on all the VA examinations of record dating back to May 2008, as of the date of each VA examination (November 2012, November 2016, August 2018, and September 2019), and in doing so should address: (1) the Veteran's reports of limitations in bending and lifting with flares, increased pain, limitations in both standing and sitting, and inability to "do anything;" and (2) whether, at any point during the appeal period, a flare-up caused functional ankylosis. The examiner should note that an opinion on flare-ups should allow the Board to estimate the average impairment and the level of disability most nearly approximated. If unable to provide such an opinion without resorting to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. In other words, per the VA Clinician's Guide, an estimate can be provided based on the Veteran's subjective reports and examination during a flare-up is not dispositive. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). Stating that an estimate cannot be provided because the Veteran was not examined during a flare-up will render the opinion inadequate, unless the examiner includes a discussion of specific facts that cannot be determined. (b.) If the examiner opines that the Veteran's symptoms amount to functional ankylosis of the lumbar spine at any point during the appeal period, please provide (1) an estimated onset date of functional ankylosis, (2) and indicate whether such ankylosis is favorable or unfavorable, citing to the evidence of record relied upon to make such an estimate. The examiner must include a discussion of the Veteran's reports of lumbar symptoms and functional impact as well as examination findings to support the opinion. (c.) Provide a retrospective opinion describing functional impairment of the Veteran's bilateral knees due to flare-ups and after repetitive use over time back to November 2016, as of the date of each VA examination of record (November 2016 and September 2019), accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. If unable to provide such an opinion without resorting to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. In other words, per the VA Clinician's Guide, an estimate can be provided based on the Veteran's subjective reports and examination during a flare-up is not dispositive. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). Stating that an estimate cannot be provided because the Veteran was not examined during a flare-up will render the opinion inadequate, unless the examiner includes a discussion of specific facts that cannot be determined. (Continued on the next page) A fully reasoned explanation for all opinions expressed must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. N. Breitbach Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Smith, 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.