Citation Nr: 24032167 Decision Date: 10/24/24 Archive Date: 10/24/24 DOCKET NO. 14-35 259A DATE: October 24, 2024 REMANDED Entitlement to a rating higher than 20 percent for right knee chondromalacia with osteoarthritis, status-post anterior cruciate ligament (ACL) repair, for the period from April 16, 2013 to March 15, 2016, is remanded. Entitlement to a rating higher than 10 percent for right knee limitation of motion, for the period from April 16, 2013 to March 15, 2016, is remanded. Entitlement to a rating higher than 10 percent for right knee instability, for the period from April 16, 2013 to March 15, 2016, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1987 to June 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which granted a 10 percent rating for chondromalacia of the right knee, effective April 16, 2013. The Veteran was scheduled for a hearing on February 14, 2018, but failed to appear without showing of a good cause. In April 2019, the Board, in relevant part, granted a 10 percent rating for right knee limitation of motion, prior to March 15, 2016, and denied a rating higher than 20 percent for chondromalacia of the right knee, prior to March 15, 2016. The Veteran appealed the April 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to an April 2020 Joint Motion for Partial Remand (JMPR), the Court vacated the April 2019 decision as to the issues of increased ratings higher than 20 percent for right knee chondromalacia and higher than 10 percent for right knee limitation of motion. The JMPR found the Board failed to provide an adequate statement of reasons and bases by failing to address the Veteran's argument regarding the inadequacy of the November 2013 VA knee examination. In November 2020, the Board denied entitlement to a rating higher than 20 percent for right knee chondromalacia with osteoarthritis, status-post ACL repair, for the period from April 16, 2013, to March 15, 2016, and entitlement to a rating higher than 10 percent for right knee limitation of motion prior to March 15, 2016. In September 2021, the Court granted a Joint Motion for Remand (JMR) and vacated the November 2020 decision. The JMR determined the Board failed to provide an adequate statement of reasons and bases by failing to address whether a retrospective right knee examination was warranted to address testing for additional range of motion in both active and passive motion and on weight-bearing and non-weightbearing during the period on appeal. In February 2022, in relevant part, the Board remanded the right knee claims on appeal to obtain a retrospective opinion addressing the nature and degree of the Veteran's right knee disabilities, and the appeal period preceding the November 2013 VA knee examination. In a November 2022 decision, the Board granted a 10 percent rating for right knee instability, prior to March 15, 2016. The Board also denied increased ratings for the right knee chondromalacia from April 16, 2013, to March 15, 2016, and for right knee limitation of motion prior to March 15, 2016. In February 2023, the RO implemented the Board's grant of a 10 percent rating for right knee instability, and assigned a 10 percent rating from April 16, 2013, to March 15, 2016. The Veteran most recently appealed the November 2022 Board decision to the Court, which vacated the decision pursuant to an October 2023 JMR, to the extent it denied higher ratings for right knee chondromalacia and right knee limitation of motion, and while the Court did not disturb the Board's grant of a 10 percent rating for right knee instability prior to March 15, 2016, it vacated the denial higher than 10 percent for that period. The October 2023 JMR found that the Board failed to: a) ensure substantial compliance with the prior February 2022 Board remand directives, and b) adequately address evidence and the benchmark it used to determine whether the Veteran's right knee instability is slight, moderate, or severe. The Board remanded the appeal in February 2024 to provide the Veteran with a VA examination and to obtain a retrospective medical opinion. The Board asked the examiner to provide a retrospective opinion as to whether the Veteran's right knee symptoms more nearly approximated slight, moderate, or severe recurrent subluxation or lateral instability, for the period dating from May 2012 to March 15, 2016, and explain the manifestations indicative of instability. In doing so, the Board asked the examiner to specifically address the following evidence: (1) an April 2014 VA treatment record noting that he had fallen in the last 12 months due to loss of balance from his knee injury; (2) an April 2014 private treatment record from Chastain Resurgens Orthopaedics [sic] noting that Appellant's knee "continue[s] to... give way" and recommending use of a stabilizing knee brace); (3) a December 2013 VA examination noting regular use of knee brace for stability and balance; and 4) a December 2014 report from V.E.B., MD, of a November 2014 independent medical examination during which the Veteran reported "that his right knee buckles and gives way" and "that he wears a DonJoy knee brace." In March 2024, VA afforded the Veteran a knee examination and obtained a medical opinion. The examiner stated that the Veteran's right knee symptoms more nearly approximated slight recurrent instability from May 2012 to March 15, 2016. The examiner stated that this opinion was based on treatment records dated April 2014 and December 2014, which indicated trace Lachmann with solid endpoint indicative of mild anterior subluxation. There was no posterior drawer and collateral ligaments were stable. In the October 2024 appellate brief, the Veteran's representative argued that the examiner failed to address any of the evidence specifically listed by the Board; and the Board agrees. The examiner did not address this evidence in providing the retrospective medical opinion. Although the Board regrets any further delay, another remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Obtain a retrospective medical opinion regarding the severity of the Veteran's right knee impairment for the period on appeal prior to March 15, 2016. The claims file must be made available to and be reviewed by the examiner. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. After review of the evidence, the examiner is asked to respond to the following: (a) Provide a retrospective opinion as to the range of motion of the Veteran's right knee disability, for the period dating from May 2012 to March 15, 2016. The examiner must provide separate, estimated range of motion findings for active and passive motion, and in weight-bearing and non-weightbearing (including accounting for functional impairment due to pain). If it is not possible to provide a specific measurement without speculation, the clinician must clearly state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the clinician does not have the knowledge or training. (b) Provide a retrospective opinion as to whether the Veteran's right knee symptoms more nearly approximated slight, moderate, or severe recurrent subluxation or lateral instability, for the period dating from May 2012 to March 15, 2016. Explain the manifestations indicative of instability. **In assessing the instability, the examiner MUST specifically address: (1) an April 2014 VA treatment record noting that he had fallen in the last 12 months due to loss of balance from his knee injury;(2) an April 2014 private treatment record from Chastain Resurgens Orthopaedics [sic] noting that Appellant's knee "continue[s] to... give way" and recommending use of a stabilizing knee brace); (3) a December 2013 VA examination noting regular use of knee brace for stability and balance; and 4) a December 2014 report from V.E.B., MD, of a November 2014 independent medical examination during which the Veteran reported "that his right knee buckles and gives way" and "that he wears a DonJoy knee brace." (Continued on the next page) ? Adequate rationale must be provided for all opinions. 2. Please ensure substantial compliance with the requested opinions to avoid yet another Stegall remand and then readjudicate the remanded legacy claim. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Yaffe, 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.