Citation Nr: 24018331 Decision Date: 04/30/24 Archive Date: 04/30/24 DOCKET NO. 15-41 029 DATE: April 30, 2024 REMANDED Entitlement to an initial rating in excess of 20 percent for left knee meniscus tear and mild osteoarthritis is remanded. Entitlement to an initial rating in excess of 20 percent for right knee meniscus tear and mild osteoarthritis is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2012 and March 2015 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The matters were remanded in February 2021. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing in March 2023. However, there was an issue with the audio recording of the hearing, and the hearing was therefore unable to be transcribed for review. The Board notified the Veteran of this fact and of his right to request another hearing in an April 2023 letter. The letter explained that the Board would presume that he did not want another hearing if no response was received within 30 days of the letter. The Veteran did not respond thus the Board concludes that the Veteran has waived his right to another hearing. These matters were remanded again in June 2023. A remand by the Board confers on a veteran, as a matter of law, the right to compliance with the remand orders. Failure of the Board to ensure substantial compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran has claimed entitlement to increased ratings for his service-connected right and left knee disabilities. He underwent a VA examination in May 2012. However, the examination did not comply with all of the requirements set forth in Sharp v. Shinseki, 29 Vet. App. 26, 34-35 (2017) and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). More specifically, the examiner did not provide an adequate rationale for his inability to provide an opinion regarding functional loss during flare-ups or after repeated use over time. The Board remanded these matters in February 2021 to schedule the Veteran for a new VA examination and to obtain a retrospective opinion addressing functional loss dating back to April 2012. The examiner was directed to provide a retrospective opinion regarding functional loss during flare-ups and after repeated use over time. The Veteran underwent a new VA knee examination in November 2021. The examination findings comply with the requirements of Sharp, 29 Vet. App. at 34-35, and DeLuca, 8 Vet. App. at 206-07. However, the examiner did not provide a retrospective opinion addressing functional loss during flare-ups or after repeated use over time. The June 2023 Board found that there had not been substantial compliance with the February 2021 remand directives. In this regard, the examiner did not provide a retrospective medical opinion addressing the Veteran's knee functional loss during flare-ups and after repeated use over time throughout the rating period. Therefore, the matters were remanded to obtain another medical opinion addressing flare-ups and repeated use over time. In July 2023, the Veteran underwent a C&P examination with a Physician's Assistant, despite the fact that the Board instructed that an examination was to be scheduled only if deemed necessary by the examiner. It is noted that the objective findings differ from the objective findings contained in the prior November 2021 examination report. For example, he had normal extension in November 2021 but on examination in July 2023 his extension was to 5 degrees in both knees reduced to 10 degrees with repeated use over time and due to flare-ups. With regard to flexion in November 2021, it was to 100 degrees in the right knee, reduced to 90 degrees with repeated use over time and due to flare-ups, and to 110 degrees in the left knee, reduced to 100 degrees with repeated use over time and due to flare-ups. In July 2023, flexion was to 85 degrees in the right knee reduced to 65 degrees with repeated use over time and reduced to 45 degrees during flare-ups. Flexion was to 80 degrees in the left knee reduced to 60 degrees with repeated use over time and reduced to 40 degrees during flare-ups. There were no objective findings of instability in November 2021, but findings of instability on examination in July 2023. In February 2024, a nurse practitioner reviewed the claims folder. The examiner stated that he had not seen the Veteran, and thus had no grounds whatsoever to make any conclusions about the current status of the Veteran's range of motion or limitations due to the associated service-connected conditions (bilateral meniscal tear and arthritis). The examiner, however, could summarize previous exams, and provide any specific information that would potentially discredit or otherwise limit the utility of these exams. But the examiner stated that this operation is extremely limited, due to the checkbox redundancy nature of these exam recordings, which, despite their length, allows only very limited actual information regarding the Veteran's knee pathology. The examiner referenced the 2023 exam and acknowledged the range of motion findings and findings of instability. The examiner stated that the findings with repeated use over time and during flare-ups "seems medically extremely unlikely, especially in the setting of imagery showing only relatively localized moderate pathology. Additionally, there is no evidence of ligament tear, indicating that the reports of instability are also likely erroneous or exaggerated. Therefore, for the 2023 exam, its dependability is likely extremely low, with symptom exaggeration highly likely in this case." Thus, the examiner had "zero confidence" with regard to the findings in the exam. The examiner acknowledged the 2012 exam "indicating relatively mild objective pathology, with associated normal range of motion without pain on exam, as expected mild pathology, but with indication of flares and intermittent pain limiting motion and activity." The examiner stated that this exam is consistent and makes sense, with a confidence level of 4 on a 5-point scale. The examiner noted that an undated additional exam indicates similar findings, with very mild objective findings on x-ray, additionally supporting the above 2012 exam as accurate. The examiner acknowledged the November 2021 exam and found it to be quite similar to the 2023 exam, indicating extremely severe range of motion, around 90 degrees of flexion, which would only objectively happen in the setting of extremely severe arthritis. Therefore, this exam also can likely be discarded in the setting of likely symptom exaggeration in this case, with zero confidence in its accuracy. In summary, the 2012 exam more likely than not indicates the actual service-connected disability, with subsequent exams likely indicating symptom exaggeration. Initially, the Board notes that the February 2024 examiner referenced the May 2012 examination but did not provide an opinion as to whether the flare-ups were associated with additional functional loss, to include an estimate of the degree of lost motion during such flare-ups. The examiner was also to provide an opinion as to whether the Veteran experienced additional functional loss in the right and left knees after repeated use over time due to pain, weakness, fatigability, or incoordination at the time of the May 2012 examination, and an estimate of the degree of lost motion for right and left knees. The comments made by the examiner pertaining to the May 2012 examination are unresponsive to the directives in the June 2023 Board Remand. Thus, remand is necessary to obtain further opinions. With regard to the opinion of the February 2024 examiner that the findings in both the November 2021 and July 2023 examinations indicate symptom exaggeration is problematic, especially because neither the November 2021 examiner nor the July 2023 examiner made a contemporaneous finding at the time of the respective examinations that the reported objective findings were due to symptom exaggeration. Thus, in light of the opinion of the February 2024 examiner pertaining to the 2021 and 2023 examinations, the Veteran should be afforded an orthopedic examination with a physician to assess the severity of his disabilities of the right and left knees. Entitlement to a TDIU is inextricably intertwined with his claims for increased ratings for the left and right knees. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Consequently, the claim for entitlement to a TDIU must be remanded. The matters are REMANDED for the following action: 1. Schedule the Veteran for an orthopedic examination with an orthopedist to assess the severity of his right and left knee disabilities. The virtual folder should be made available to the examiner for review in conjunction with the examination. Any medically indicated special tests should be accomplished, and all special test and clinical findings should be clearly reported. The examination of the right and left knees should include range of motion studies. Regarding range of motion testing, the examiner should report the point (in degrees) at which pain is elicited, as well as whether there is any other functional loss due to pain, weakened movement, excess fatigability, incoordination, or flare-ups. These determinations must be expressed in terms of the additional limitation of motion in approximate degrees due to each functional factor that is present. The examiner should report on whether there is functional loss due to limited strength, speed, coordination or endurance. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should review the May 2012 C&P examination wherein the Veteran reported flare-ups of right and left knees. The examiner should provide a retrospective comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion, based on the Veteran's reported flare-ups. The examiner should attempt to provide a retrospective estimate regarding additional loss of function during such flare-ups and such additional loss should be expressed in degrees of motion. If this is not feasible, the examiner should provide a detailed explanation and rationale for why such could not be accomplished. In providing an estimate, the examiner should consider information in the record and provided by the Veteran regarding the severity, frequency, duration, and/or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees cannot be given. The examiner should also provide a retrospective opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran experienced additional functional loss in the right and left knees after repeated use over time due to pain, weakness, fatigability, or incoordination, at the time of the May 2012 VA examination. If so, please estimate the degree of lost motion for the right and left knees. The examiner should perform stability testing, report whether there is instability or subluxation, and express an opinion as to the severity of such instability or subluxation. The examiner should comment on whether the Veteran has a prescription from a medical provider for a brace, cane, or walker due to recurrent instability. The examiner should review the May 2012, February 2021, and July 2023 C&P examination reports and attempt to provide a retrospective opinion as to whether the Veteran had recurrent subluxation or lateral instability, to include whether such was slight, moderate or severe, to include consideration of the Veteran's lay assertions of symptomatology associated with his knees. If this is not feasible, the examiner should provide a detailed explanation and rationale for why such could not be accomplished. The examiner should address the February 2024 examiner's opinion regarding an exaggeration of symptoms with regard to the findings in the February 2021 and July 2023 examinations. The examiner should comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. The examiner should attempt to estimate additional loss of function during such flare-ups and such additional loss should be expressed in degrees of motion. The Court has held that an inability to observe a flare-up is an insufficient basis for not providing an estimate on additional functional limitation. The examiner is to provide a statement concerning how the right and left knee disabilities affect his functioning and activities. The examiner is asked to describe the types of limitations he would experience as a result of his right and left knee disabilities. The examiner must provide a comprehensive rationale for the opinions. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.W. Kreindler, 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.