Citation Nr: 18154272 Decision Date: 11/30/18 Archive Date: 11/29/18 DOCKET NO. 12-09 930 DATE: November 30, 2018 REMANDED Entitlement to an initial rating in excess of 10 percent for left knee patellofemoral syndrome is remanded. Entitlement to an initial rating in excess of 10 percent prior to May 22, 2010, and to a rating in excess of 20 percent thereafter for lumbosacral strain with degenerative changes is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1999 to May 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In December 2014, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. In January 2015 and August 2017, the Board remanded this matter for further development. That development having been completed, this matter has returned to the Board for further appellate review. 1. Entitlement to an initial rating in excess of 10 percent for left knee patellofemoral syndrome is remanded. 2. Entitlement to an initial rating in excess of 10 percent for lumbosacral strain with degenerative changes prior to May 22, 2010, and to a rating in excess of 20 percent thereafter is remanded. The Veteran’s claims must again be remanded for further development because there has not been substantial compliance with the directives of the August 2017 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand confers upon the claimant, as a matter of law, the right to compliance with the remand directives); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). Specifically, the August 2017 remand directed the RO to ensure the Veteran received VA examinations which complied with Correia v. McDonald, 28 Vet. App. 158 (2016). In this regard, the examiner was directed to record range of motion testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of motion of the opposite undamaged joint. Correia, 28 Vet. App. 158 at 169-70 (citing 38 C.F.R. § 4.59 (2016)). If the examiner was unable to conduct the required testing, or concluded that the required testing is not necessary, he or she should have clearly explained why what that is so. Id. at 170. The November 2017 VA examination reports, in pertinent part, provide range of motion results for the thoracolumbar spine, left knee, and right knee, but do not specify the type of testing on which these results were based (i.e. active or passive, weight-bearing or nonweight-bearing), or provide results for each type of test, as required under Correia. If only active range-of-motion testing was performed, and the other tests were deemed not necessary or possible, the examiner did not state this in the report. As these are determinations that require medical judgment, the Board may not make its own independent finding on this issue. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Further, a new VA examination must be provided to 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. Sharp, 29 Vet. App. 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 Finally, as this matter is being remanded, the Veteran’s updated VA treatment records should be obtained. The matters are REMANDED for the following action: 1. Make arrangements to obtain the Veteran’s VA treatment records, dated from July 2018, forward. 2. Thereafter, schedule the Veteran for an appropriate VA examination(s) to assess the severity of his service-connected lumbosacral strain and left knee patellofemoral syndrome. The entire claims file must be reviewed by the examiner(s) in conjunction with the opinion. The examiner(s) should confirm in the examination report(s) that he or she has reviewed the folder in conjunction with the examination(s). The examination(s) should be performed in accordance with the Disability Benefits Questionnaire(s) (DBQs). The examiner(s) is to specifically test the range of motion of the thoracolumbar spine, left knee, and right knee in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner(s) 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(s) must elicit as much information as possible from the Veteran regarding the severity, frequency, and duration of flare-ups, their effect on functioning, and precipitating and alleviating factors. If the examination(s) is not performed during a flare-up, the examiner(s) must provide an estimate of additional loss of range of motion during a flare-up. If the examiner(s) is unable to provide an estimate of additional loss of motion during a flare-up, the examiner(s) must provide a specific explanation as to why the available information, including the Veteran’s own statements, is not sufficient to make such an estimate. (Continued on the next page)   All examination findings, along with a complete rationale for all opinions expressed, must be set forth in the examination report(s). P. M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. M. Stedman, Associate Counsel