Citation Nr: 23062637 Decision Date: 11/28/23 Archive Date: 11/28/23 DOCKET NO. 16-62 486 DATE: November 28, 2023 REMANDED Entitlement to a disability rating in excess of 10 percent for left knee strain prior to September 24, 2019, is remanded. Entitlement to a disability rating in excess of 10 percent for the Veteran's right knee strain prior to April 7, 2017, is remanded. Entitlement to a disability rating in excess of 30 percent for the Veteran's right knee strain prior to September 24, 2019, is remanded. Entitlement to a disability rating in excess of 10 percent for the Veteran's lumbosacral back strain with arthritis for the period prior to August 19, 2014, is remanded. Entitlement to a disability rating in excess of 20 percent for the Veteran's lumbosacral back strain with arthritis for the period prior to September 24, 2019, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1980 to February 1996. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran's Law Judge (VLJ) at an August 2019 Board hearing. A transcript of the hearing is of record. When this case was last before the Board in January 2020 the Veteran's claims were remanded for additional development. Bilateral Knees and Lumbosacral Back Strain When VA undertakes to provide an examination or opinion, it must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). To be considered adequate, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). When there is not substantial compliance with Board remand requests, the Board errs as a matter of law when it does not ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). In response to the January 2020 Board remand, the RO obtained an August 2020 VA addendum medical opinion to address the severity of the Veteran's bilateral knee and spine conditions for the periods on appeal prior to September 24, 2019. However, the Board agrees with the Veteran's representative, Vietnam Veterans of America, who argues that the VA examinations are not adequate for rating purposes. Accordingly, the Board finds the opinions to be inadequate for adjudication purposes. In reaching this determination, the Board notes that the August 2022 remand required the examiner to provide either a specific measurement, or an estimate, of the additional functional impairment due to flare-ups of the Veteran's conditions. In proffering their opinions, the examiner noted that the Veteran's conditions would have "an additional 10 percent loss in [range of motion] during flare-ups." However, the examiner does not translate this into degrees of range of motion lost. Nor does the examiner note if this range of motion loss would be in flexion, extension, rotation, etc. As musculoskeletal disabilities of the knees and back are rated based on degrees of range of motion lost, not on percentage of additional motion lost, the Board finds the provided opinion inadequate to rate the Veteran's disabilities. As such, the Board finds a remand is required in order to obtain an addendum medical opinion which complies with the prior Board's remand instructions. The matters are REMANDED for the following action: 1. Associate records of the Veteran's treatment, including records of his VA treatment. 2. Afford the Veteran a VA examination to determine the nature, extent and manifestations of the Veteran's right knee, left knee and spine disabilities. The examiner and indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state an opinion regarding the following: - The examiner(s) must provide a fully articulated retrospective medical opinion (as best as can be ascertained from the Veteran's self-report in the prior VA examination reports, as well as from clinical records and other lay evidence in the record). The examiner(s) should provide estimates any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time of the lumbar spine, and bilateral knee disabilities for the relevant periods on appeal prior to September 24, 2019. In providing the requested opinion, the examiner(s) must opine whether pain, weakness, fatiguability, or incoordination significantly limited functional ability during periods of flare-up or after repeated use over time, and identify any other additional factors that contributed to the Veteran's disabilities during this time. [The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran.] If the examiner(s) cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner(s) should 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). - The examiner(s) must indicate whether the Veteran had ankylosis of the lumbar spine or bilateral knees. If ankylosis is not diagnosed then the examiner(s) must answer whether there is evidence demonstrating the functional equivalent of ankylosis at any point prior to September 24, 2019-i.e., functional loss consistent with that contemplated by ankylosis. The examiner must provide a complete rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiners should identify the additional information that is needed. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gresham, Trevor 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.