Citation Nr: 18146130 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 12-28 225 DATE: October 30, 2018 REMANDED Entitlement to a disability rating in excess of 20 percent for left knee medial meniscectomy with posttraumatic arthritis and scar is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1979 to August 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision. In April 2012, a new Appointment of Veterans Service Organization as Claimant’s Representative (VA Form 21-22) was received by VA appointing the representative listed on the title page above. The Board recognizes this change in representation. In January 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing. A transcript of that hearing is of record. The Board remanded the Veteran’s claim for a higher disability rating in August 2017 and April 2018 for further development. For the reasons discussed below, the claim requires yet another remand. 1. Entitlement to a disability rating in excess of 20 percent for left knee medial meniscectomy with posttraumatic arthritis and scar is remanded. The Board finds that there was not substantial compliance with the Board’s April 2018 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). The Board’s April 2018 remand directives instructed VA to schedule the Veteran for a VA examination to assess the current severity of his left knee medial meniscectomy with posttraumatic arthritis and scar. However, the claims folder does not contain a copy of the notice letter informing the Veteran of the date, time, and location of the examination. The Veteran has not provided a reason for not appearing for the examination or requested that the examination be rescheduled. Moreover, the Veteran appeared for other VA examinations conducted throughout the pendency of his appeal. Thus, there is an indication that he did not receive notice of any such VA examination if it was scheduled. While the Board has already remanded this case multiple times to afford the Veteran an adequate examination to evaluate the current severity of the Veteran’s left knee medial meniscectomy with posttraumatic arthritis and scar, an additional remand is necessary to comply with the Board’s April 2018 remand and afford the Veteran an adequate examination. The Board notes that the new VA examination must comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017). VA examiners are required to obtain information from the Veteran as to the severity, frequency, and duration of flare-ups, as well as precipitating and alleviating factors, and the extent of functional impairment. Sharp, 29 Vet. App. at 32. VA examiners are also required to estimate the additional loss of range of motion during a flare-up based on all procurable information from the record, as well as the Veteran’s own statements. Id. at 34-35. If an estimate cannot be provided without resort to speculation, it must be clear whether this is due to a lack of knowledge among the medical community at large, or insufficient knowledge of the specific examiner. Id. at 36. Additionally, although the most recent VA examination conducted in January 2018, was not performed during a flare-up, it is not apparent why the examiner could not estimate additional functional loss based on the Veteran’s statements describing the flare-ups, or why the available information in the file was not sufficient to permit such an estimate. Should the new VA examination be conducted while the Veteran is not experiencing a flare-up of his left knee, the estimation of additional loss of range of motion during a flare-up must be made after obtaining information concerning the severity, frequency, and duration of flare-ups, as well as precipitating and alleviating factors. Related, a retrospective medical opinion is necessary to capture the severity of the Veteran’s left knee medial meniscectomy with posttraumatic arthritis for the entire appeal period. See Chotta v. Peake, 22 Vet. App. 80 (2008) (when there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted). In January 2018, the VA examination report demonstrates that the Veteran’s baseline pain level is 4 out of 10 and his weekly pain flare-up increases his pain to 8 out of 10. When the Veteran experiences flare-ups of pain, he has difficulty moving. The examination report states that the Veteran was not examined immediately after repetitive use over time and whether pain, weakness, fatiguability, or incoordination significantly limits functional ability could not be determined without resorting to mere speculation. The May 2016 examination report indicates that the Veteran reports having functional loss or functional impairment, including repeated use over time, but that it could not be determined whether pain, weakness, fatiguability, or incoordination significantly limits functional ability because the examination was not being performed during a flare-up and there were no changes with repetitive testing. In June 2012, the VA examination report shows the Veteran experiences flare-ups with activity, especially problems with excessive standing, sitting, or walking, ascending and descending stairs, squats, and kneeling. The examination report demonstrates that after repetitive use, the Veteran experiences less movement than normal, excess fatigability, pain on movement, interference with sitting, standing, and weight-bearing, and swelling. The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from April 2018 to the present. 2. After the above development is completed, schedule the Veteran for an examination of the current severity of his left knee medial meniscectomy with posttraumatic arthritis and scar. A copy of the letter notifying the Veteran of the date, time, and location of the examination should be associated with the claims folder. (a.) The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. (b.) The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. (c.) To the extent possible, the examiner should identify any symptoms and functional impairments due to left knee medial meniscectomy with posttraumatic arthritis and scar alone and discuss the effect of the Veteran’s left knee medial meniscectomy with posttraumatic arthritis and scar on any occupational functioning and activities of daily living. (d.) The examiner should also provide a retrospective opinion, as best as can be ascertained from the Veteran’s self-reports as well as from clinical records and other evidence, for the January 2018, May 2016, and June 2012 VA examinations. For each examination, the examiner is asked to provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. (e.) If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must 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 examiner (does not have the knowledge or training). (Continued on the next page)   All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Mussey, Associate Counsel