Citation Nr: 18154876 Decision Date: 12/04/18 Archive Date: 11/30/18 DOCKET NO. 15-15 132 DATE: December 4, 2018 REMANDED Entitlement to an initial compensable rating for a left knee condition prior to March 9, 2017, and to a rating in excess of 20 percent under Diagnostic Code 5257, and 10 percent under Diagnostic Code 5260, from March 9, 2017 is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1995 to December 2000 and from May 2005 to April 2007. This case comes before the Board of Veterans’ Appeals (Board) from an April 2014 rating decision. The Veteran testified before the undersigned in a videoconference Board hearing in August 2016; a transcript of the hearing is of record. Entitlement to an initial compensable rating for a left knee condition prior to March 9, 2017, and to a rating in excess of 20 percent under Diagnostic Code 5257, and 10 percent under Diagnostic Code 5260, from March 9, 2017 is remanded. The Veteran contends that his left knee disability should have a higher disability rating. The Veteran underwent a VA knee and lower leg conditions examination in February 2018, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The examiner stated that an opinion concerning the Veteran’s left knee flare-ups could not be provided without resort to speculation, the examiner explained that that the Veteran had no change in range of motion with repetitive use and it would be pure speculation to state with a significant flare-up, whether there would be any change in range of motion to what degree. The Board interprets this explanation as the Veteran did not have a flare-up during the examination, therefore, it would be pure speculation to determine the range of motion measurements during a flare-up. The examiner may not state the he or she cannot provide an opinion without resort to speculation solely because the Veteran is not currently experiencing a flare-up at the time of the examination. See generally Sharp, 29 Vet. App. 26. Therefore, the Veteran must be provided another examination in keeping with the holding in Sharp. The Board notes that this issue was remanded for further development in August 2017. The August 2017 remand directed the agency of original jurisdiction (AOJ) to readjudicate the issues on appeal and if the benefits of the appeal remain denied, in whole or part, the Veteran and his representative must be provided with a Supplemental Statement of the Case (SSOC), and provided a reasonable opportunity to respond. It appears that the Veteran was not granted full benefits after readjudication and no SSOC was issued in this case. Thus, the Board’s remand directives were not followed. See Stegall v. West, 11 Vet. App. 268 (1998) (as a matter of law, a remand by the Board confers on the Veteran the right to compliance with the remand orders). Upon remand the AOJ must readjudicate the issue and if the benefit sought is not fully granted then issue an SSOC. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination of the current severity of his left knee disability. 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. To the extent possible, the examiner should identify any symptoms and functional impairments due to the left knee disability including left knee instability and left knee patellofemoral pain syndrome with arthritis and arthroscopic scar alone and discuss the effect of the Veteran’s left knee disability on any occupational functioning and activities of daily living. 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). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Robert Batten, Associate Counsel