Citation Nr: 1804252 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 11-02 192 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for left knee chondromalacia. 2. Entitlement to a disability rating in excess of 10 percent for right knee chondromalacia. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD R. I. Sims, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1962 to October 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida that, in pertinent part, denied a rating in excess of 10 percent for left knee chondromalacia, and denied a compensable rating for right knee chondromalacia. During the pendency of the appeal period, the RO issued a December 2015 rating decision, which granted a 10 percent rating for right knee chondromalacia, effective October 20, 2008. This appeal has previously been before the Board, most recently in February 2017, when it was remanded for further development. As is discussed in greater detail below, the Board finds that its remand instructions have not been substantially complied with, and remand is again necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that when the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on his part. REMAND While the Board sincerely regrets additional delay in adjudicating this appeal, the issue of entitlement to a rating in excess of 10 percent for right and left knee chondromalacia must be remanded for further development. Such development is necessary to aid the Board in making an informed decision, and will ensure that the Veteran's claims are afforded every consideration. In February 2017, this appeal was remanded for additional development, to include updated medical records and an adequate VA examination that included range of motion testing of the knees in active and passive motion, weight-bearing and non-weight-bearing, as required by Correia v. McDonald, 28 Vet. App. 158 (2016). However, the May 2017 VA examination included range of motion testing, but there is no indication if this testing was active motion, passive motion, weight-bearing or non-weight-bearing and there is no explanation regarding whether such testing could not be conducted or was not necessary. A Board remand confers upon the Veteran, as a matter of law, the right to compliance with the remand order. Stegall, 11 Vet. App. at 270-71. Thus, in accordance with Stegall, remand for full compliance with the Board's February 2017 remand is warranted. In light of the remand, updated VA treatment records should be obtained. Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain any updated medical records and associate them with the claims file. 2. Following completion of the above, schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected right and left knee chondromalacia. The entire claims file should be provided to the examiner for review of pertinent documents therein. The examiner should test the range of motion in both active and passive motion, in weight-bearing and non-weight-bearing, for both the left and right knee. If for any reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, s/he should clearly explain why that is so. The examination report should include a complete rationale for all opinions expressed. 3. Finally, readjudicate the appeal. If the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).