Citation Nr: 25005707 Decision Date: 04/25/25 Archive Date: 04/25/25 DOCKET NO. 03-19 886 DATE: April 25, 2025 REMANDED Entitlement to an evaluation in excess of 10 percent from April 13, 2012 to September 26, 2024 and in excess of 0 percent thereafter for limitation of flexion due to left knee degenerative joint disease. Entitlement to a compensable evaluation from April 13, 2012 to September 26, 2024 and in excess of 20 percent thereafter for limitation of extension due to left knee degenerative joint disease. Entitlement to a total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU) from October 22, 2002. REASONS FOR REMAND The Veteran served on active duty from November 1982 to November 1988. This appeal is before the Board of Veterans' Appeals (Board) from March 2003 and November 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In April 2005, the Veteran and his spouse testified during a Board hearing in Jackson, Mississippi before a Veterans Law Judge (VLJ). A transcript is included in the claims file. In January 2018, he was informed that the VLJ who conducted his hearing was no longer available and that he had a right to a second hearing before the VLJ who would ultimately decide his appeal. He replied, declining a second hearing. In an April 2025 submission, the Veteran's representative asks the Board to refer for adjudication two issues, specifically entitlement to service connection for a psychiatric disability and a lumbar spine disability. An April 2012 Board decision noted that during the pendency of the claim, the Veteran asserted that "various other problems" were secondary to his service-connected knee disability, but these claims were not developed for appellate consideration. The matters were again referred for initial consideration by the AOJ. In compliance with the April 2012 Board decision's referral, an October 2012 letter to the Veteran and his former representative requested that he clarify what disabilities he intended to claim secondary service connection for. In reply to this letter, the Veteran provided statements regarding dropping of his left foot. The November 2012 rating decision, which denied an increased rating for his left knee disability that gave rise to this appeal, also denied service connection for left foot drop. The Veteran appealed this decision, which was ultimately denied by the Board in September 2021. The Board therefore finds that the referrals in its prior decision have been fulfilled by the AOJ. The April 2025 submission claims that the April 2012 referral was the result of an October 2007 statement by the Veteran's private physician. The physician stated that the Veteran's disability status should be reconsidered. In support of this statement, the physician stated that in addition to his left knee disability, the Veteran suffered from the aftereffects of a mild stroke (foot drop), chronic low back pain (disc disease), and shoulder pain (rotator cuff tear). The physician stated that the accumulative effects of these injuries are debilitating and that he had been diagnosed with depression, which compounded his suffering. The Board finds that the October 2007 statement does not give rise to a claim of service connection for a back disability or a mental health disability. The physician stated that the Veteran was disabled but did not suggest or imply that a back disability or a mental health disability was the result of service or in any way related to his left knee disability. While the representative submitted additional evidence to show the possibility of such a relationship, evidence submitted in 2025 cannot retroactively make an October 2007 medical statement a valid claim. The Board therefore finds that the Veteran does not have any unadjudicated claim of secondary service connection for a lumbar spine disability or a mental health disability. 1. Entitlement to an evaluation in excess of 10 percent from April 13, 2012 to September 26, 2024 and in excess of 0 percent thereafter for limitation of flexion due to left knee degenerative joint disease 2. Entitlement to a compensable evaluation from April 13, 2012 to September 26, 2024 and in excess of 20 percent thereafter for limitation of extension due to left knee degenerative joint disease 3. Entitlement to a TDIU from October 22, 2002 The Veteran claims increased ratings for his left knee degenerative joint disease, to include a TDIU. The Board sincerely regrets the additional delay but finds that another remand is necessary. Service connection for a left knee disability was initially granted in the March 2003 rating decision on appeal, which assigned a noncompensable rating effective October 22, 2002. The Veteran appealed for an increased rating. In June 2006, the Board remanded the claim with instruction to provide proper notice, to obtain VA treatment records, to obtain Social Security records, and to provide him with a VA examination. Notice was provided in a June 2006 letter, the appropriate records were obtained, and the Veteran underwent examinations in May 2007 and June 2009. In January 2010, the Board again remanded with instruction to obtain specific community health center records. The specified records were obtained, and in an April 13, 2012 decision, the Board granted a 10 percent rating but denied higher ratings. This decision remains final as to the Veteran's left knee ratings, but the decision also took jurisdiction of entitlement to a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453 (2009), and remanded that issue with instruction to provide proper notice and to develop and adjudicate the issue appropriately. On remand, the AOJ developed the issue of entitlement to a TDIU and sent the Veteran appropriate notice in an October 2012 letter. In developing the claim, additional evidence relevant to the Veteran's left knee was obtained. As such, after a September 2012 rating decision implemented the Board's partial grant, a separate November 2012 rating decision considered the new evidence with a claim date of April 13, 2012 and continued the 10 percent rating. In January 2013, the Veteran appealed this decision, giving rise to this appeal for an increased rating for his left knee. In May 2018, the Board remanded the increased rating and TDIU issues with instruction to request the Veteran to identify any outstanding treatment records and to provide him with a current and adequate left knee examination. The AOJ attempted to obtain records, and the Veteran underwent a VA examination in April 2021. In September 2021, the Board found the examination inadequate and remanded with instruction to provide an adequate examination. He underwent additional examinations in November 2021 and April 2022. In August 2022, the Board again remanded with instruction to obtain retrospective opinions for the November 2012, June 2016, November 2016, and April 2021 VA examinations under Sharp v. Shulkin, 29 Vet. App. 26 (2017). Opinions were obtained in September 2022. In a March 2023 decision, the Board denied the Veteran's appeals. The Veteran appealed the March 2023 Board decision to the United States Court of Appeals for Veterans Claims (CAVC), which vacated the denial in a December 2023 order granting a joint motion for remand (JMR). In April 2024, the Board remanded with instruction to address concerns raised by the JMR, specifically to obtain an addendum opinion to explain the examiner's inability to provide a retrospective Sharp opinion for the November 2016 VA examination and to obtain additional private treatment records dated 2015-2016 from the Rush Pain Treatment Clinic and The Pain Clinic, both in Meridian, Mississippi. Neither of these instructions has been adequately complied with, and another remand is therefore required before the appeal may be adjudicated. See Stegall v. West, 11 Vet. App. 268 (1998). First, rather than comply with the Board's instruction to obtain an addendum opinion explaining the September 2022 VA examiner's inability to provide a retrospective Sharp opinion for the November 2016 VA examination, the AOJ simply scheduled the Veteran for additional current examinations in September 2024 and January 2025. Additional current examinations do not address the concerns raised by the December 2023 JMR or the April 2024 Board remand. As such, remand is necessary to obtain a corrective opinion. Second, in a May 2024 letter the Veteran and his representative were requested to authorize VA to obtain the specified private treatment records. No response was received prior to the November 2024 supplemental statement of the case. In December 2024, however, prior to recertification to the Board, the Veteran's representative submitted a letter accompanied by an authorization form requesting that the AOJ obtain the records before returning the appeal to the Board. The AOJ obtained relevant records from the Rush Pain Treatment Clinic in December 2024, ten days before transferring the appeal to the Board. The AOJ, however, did not issue an additional supplemental statement of the case. AOJ review of evidence received prior to transfer of the appeal to the Board is not waivable, and as such remand is also required to review this evidence. 38 C.F.R. § 19.37. The matters are REMANDED for the following action: 1. Return the claims file to the September 2022 examiner, if available, or to another qualified examiner. Ask the examiner to provide a RETROSPECTIVE opinion that explains why he was unable to estimate any functional loss in terms of additional degrees of limited motion of the left knee during flare-ups at the time of the November 2016 VA examination. Specifically, the examiner must explain why "[s]uch estimates are speculative by their very nature" and whether this is the opinion of "the medical community at large" or simply his own. The Board asks that the examiner and AOJ ensure that this question is answered and explained fully, to avoid the need to return the case for clarification. 2. After completing the above, readjudicate the appeal, considering all new evidence including the private treatment records obtained in December 2024. If any benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Gallagher, 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.