Citation Nr: 22017277 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 16-08 384 DATE: March 24, 2022 REMANDED Prior to November 1, 2014, a disability rating in excess of 10 percent (exclusive of a period of temporary total ratings) for a left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1979 until his honorable retirement in September 2001. This appeal is being treated expeditiously on the Board of Veterans' Appeals' (Board) docket pursuant to 38 U.S.C. §§ 5109B, 7112 and 38 C.F.R. § 20.902(d). This case comes before the Board on appeal from an August 2013 rating decision by a Regional Office of the United States Department of Veterans Affairs (VA). In the Board's most recent remand order, dated September 29, 2021, it instructed the VA Regional Office to obtain a retrospective opinion from a qualified clinician addressing additional functional loss during flare-ups based on the results of a November 2012 VA examination. This was requested in order to comply with the requirements of Sharp v. Shulkin, 29 Vet. App. 26 (2017), which requires that an examiner estimate the loss of range of motion due to flare-ups in degrees of motion. The Board finds that there has not been substantial compliance with the Board's previous remand directives regarding the issue on appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998). The VA Regional Office obtained an addendum opinion from a VA-contracted examiner in November 2021. The examiner stated, "My RETROSPECTIVE OPINION is that there is additional functional loss during left knee flare-ups specifically due to LEFT knee pain, fatigability, lack of endurance and weakness. In addition, ascending and descending stairs and performing Activities of Daily Living (ADL's) that require left knee flexion such as dressing, tying shoes, putting on socks, putting on/off pants are difficult and painful." But the examiner did not offer an estimation of whether the Veteran would suffer additional loss of range in motion in either flexion or extension. Instead, she only cited the Veteran's current ranges of motion. Importantly, the Veteran underwent total left knee replacement on September 27, 2013. Thus, the question that must be answered is "what was the extent to which the Veteran's flexion and extension was limited, if any, during flare-ups prior to his total knee replacement?" He was in receipt of a 100 percent temporary disability rating based on his surgery from September 27, 2013, to November 1, 2014. Accordingly, the matter is REMANDED for the following actions: 1. Obtain an addendum opinion from the November 2021 examiner, or another qualified clinician if that examiner is unavailable, addressing the following: Based on the November 2012 VA examination and the November 2021 VA-contracted opinion, please opine on the extent to which the Veteran's flexion and extension was limited, if any, during flare-ups prior to his total knee replacement on September 27, 2013. The Board requests the examiner express his or her opinion in degrees in reduction in range of motion. In other words, the Board is asking the examiner to provide a retrospective opinion estimating the degree of limitation of flexion and extension at the time of the November 2012 VA examination that the Veteran would have experienced during a flare-up at that time. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). If the examiner finds a new examination is required, then one shall be provided. March 24, 2022 Christopher J. O'Donnell Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.