Citation Nr: 18159185 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 09-11 253A DATE: December 19, 2018 ORDER The claim for entitlement to a rating higher than 40 percent for degenerative joint disease (DJD) of the lumbar spine is denied. The claim for entitlement to a higher rating for radiculopathy of the right lower extremity, rated as 10 percent disabling prior to November 10, 2010 and 20 percent disabling thereafter, is denied. The claim for entitlement to an initial rating higher than 10 percent for radiculopathy of the left lower extremity is denied. The claim for entitlement to a rating higher than 10 percent for right knee osteoarthritis status post meniscectomy with limitation of flexion from June 5, 2008 to December 15, 2009 is denied. The claim for entitlement to a rating higher than 20 percent for right knee instability from June 5, 2008 to December 15, 2009 is denied. The claim for entitlement to a total disability rating based on individual employability due to service-connected disabilities (TDIU) is granted. REMANDED The claim for entitlement to a higher rating for residuals of a right total knee replacement, rated as 30 percent disabling from February 1, 2011 to March 23, 2017, and as 60 percent disabling thereafter, is remanded. FINDINGS OF FACT 1. The orthopedic impairment from the Veteran’s lumbar spine disability most nearly approximates painful and limited motion without ankylosis or incapacitating episodes requiring bed rest prescribed by a physician. 2. The neurological impairment from the Veteran’s lumbar spine disability manifests radiculopathy of the right lower extremity that most nearly approximates mild incomplete paralysis of the sciatic nerve prior to November 10, 2010 and moderate incomplete paralysis thereafter. 3. The neurological impairment from the Veteran’s lumbar spine disability manifests radiculopathy of the left lower extremity that most nearly approximates mild incomplete paralysis of the sciatic nerve throughout the claims period. 4. The Veteran’s right knee osteoarthritis most nearly approximates flexion limited to 90 degrees and extension to -5 degrees without frequent episodes of locking and effusion into the joint. 5. The Veteran’s right knee disability manifests instability that is no more than moderate throughout the claims period. 6. The Veteran’s service-connected disabilities preclude him from performing gainful employment for which his education and occupational experience otherwise qualify him. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 40 percent for orthopedic impairment from DJD of the lumbar spine are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.45, 4.71a, Diagnostic Codes 5235-5243. 2. The criteria for a higher rating for radiculopathy of the right lower extremity, rated as 10 percent disabling prior to November 10, 2010 and 20 percent disabling thereafter, are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.14, 4.123, 4.124, 4.124a, Diagnostic Code 8520. 3. The criteria for an initial rating higher than 10 percent for radiculopathy of the left lower extremity are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.14, 4.123, 4.124, 4.124a, Diagnostic Code 8520. 4. The criteria for a rating higher than 10 percent for right knee arthritis with limitation of flexion from June 5, 2008 to December 15, 2009 are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5010, 5256, 5258-5263. 5. The criteria for a rating higher than 20 percent for right knee instability from June 5, 2008 to December 15, 2009 are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5257. 6. The criteria for an award of a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1970 to April 1987. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an October 2008 rating decision by the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO). In July 2012, February 2017, and September 2017, the Board remanded the case for additional development. It has now returned to the Board for further appellate action. The claims for increased ratings for radiculopathy of the right and left lower extremities are also part of the current appeal before the Board. The criteria for the evaluation of disabilities of the spine provide that associated objective neurological abnormalities are separately rated and are a component of the underlying spinal condition. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5343. Therefore, the disability ratings assigned for radiculopathy of the lower extremities are part and parcel of the increased rating claim for the underlying low back disability and are also before the Board. Increased Rating Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability ratings. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board must also consider the appropriateness of whether “staged ratings” are warranted at any time during the relevant claims period. 1. Entitlement to a rating higher than 40 percent for DJD of the lumbar spine. Service connection for mechanical low back pain was awarded in an August 1987 rating decision with an initial 10 percent evaluation assigned effective April 2, 1987. The Veteran’s service-connected disability was later recharacterized as DJD of the lumbar spine and the current 40 percent evaluation was continued in the October 2008 rating decision on appeal. The Veteran contends that a higher rating is warranted as his low back disability is productive of severe pain and impairment. The Veteran’s DJD of the lumbar spine is currently rated as 40 percent disabling under Diagnostic Code 5243 and the general rating formula for rating diseases and injuries of the spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Under the general rating formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings apply. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Thus, in order to warrant an increased evaluation under the general rating formula, the Veteran’s low back disability must demonstrate unfavorable ankylosis of the entire thoracolumbar spine. After review of the evidence, the Board finds that the orthopedic impairment from the service-connected low back disability does not most nearly approximate ankylosis of the thoracolumbar spine. Generally, ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, surgical procedure.” Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). An ankylosed joint is more commonly referred to as “frozen.” See, e.g., Dorland’s Illustrated Medical Dictionary 286 (32d ed.2012). In this case, the Veteran has retained at least some useful motion of his back throughout the claims period. The July 2008, May 2013, August 2015, and March 2017 VA examiners all noted the presence of spinal motion and found that the thoracolumbar spine was not ankylosed. At the most recent VA examination in March 2017, the Veteran was able to forward flex his back to 45 degrees and demonstrated a combined range of motion to 135 degrees with consideration of functional factors such as pain. VA and private treatment records dated throughout the relevant period similarly establish the presence of limited, but not absent, spinal motion. Thus, although the Veteran clearly experiences a demonstrable loss of spinal motion, the medical evidence establishes that he has retained some ability to move and bend his spine throughout the claims period and it is not ankylosed. The competent lay evidence also does not establish ankylosis. Throughout the claims period, the Veteran reported experiencing constant low back pain with flare-ups that demonstrably limited his activities. He is competent to report the symptoms he experiences, but the Board finds that the objective medical evidence from numerous VA examinations and VA healthcare providers is more probative regarding the range of motion of the service-connected back disability and whether the record establishes actual ankylosis of the spine. The Board also notes that the Veteran has never reported that any part of his spine is frozen, fixated, or immobile. Additionally, while the Board must typically consider the provisions of 38 C.F.R. § 4.40 and § 4.45 pertaining to functional loss when evaluating disabilities rated on the basis of limitation of motion, these regulations are not for consideration where, as here, the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); DeLuca v. Brown, 8 Vet. App. 202 (1995). As the Veteran’s entire thoracolumbar spine is clearly not ankylosed, despite reported flare-ups that further limit spinal motion, a rating higher than 40 percent is not warranted for the orthopedic impairment associated with the service-connected arthritis. The Board has also considered whether a rating in excess of 40 percent is warranted under the formula for rating intervertebral disc syndrome. Diagnostic Code 5243 provides for a 60 percent evaluation for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note 1 provides that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243. In this case, the evidence does not establish, and the Veteran does not allege, that his back disability has resulted in incapacitating episodes requiring bed rest prescribed by a physician. Moreover, treatment records do not document any prescribed bed rest for the service-connected back condition. The Veteran has clearly not experienced incapacitating episodes as defined by VA having a total duration of at least 6 weeks during any 12-month period relevant to the claim. Therefore, a rating higher than 40 percent is also not warranted under the criteria pertaining to intervertebral disc syndrome. The Veteran’s orthopedic impairment of the thoracolumbar spine is therefore appropriately rated as 40 percent disabling throughout the claims period and the claim for an increased rating must be denied. 2. Entitlement to a higher rating for radiculopathy of the right lower extremity, rated as 10 percent disabling prior to November 10, 2010 and 20 percent disabling thereafter. 3. Entitlement to an initial rating higher than 10 percent for radiculopathy of the left lower extremity. The Board has determined that the Veteran’s orthopedic impairment associated with his service-connected low back disability is properly rated as 40 percent disabling. The Board must now consider whether increased ratings are warranted for the service-connected radiculopathy of the bilateral lower extremities as the general rating formula provides for separate ratings for neurologic manifestations of a back disability. Service connection for radiculopathy of the right lower extremity was granted in a September 2006 rating decision with an initial 10 percent evaluation assigned effective January 26, 2006. In May 2013, an increased 20 percent evaluation was granted for the right leg radiculopathy effective from November 10, 2010. The May 2013 rating decision also granted service connection for radiculopathy of the left lower extremity with an initial 10 percent evaluation assigned effective November 10, 2010. The Veteran contends that increased ratings are warranted for the neurological impairment associated with the low back disability as he experiences pain and loss of function in the bilateral lower extremities. Disability involving a neurological disorder is ordinarily rated in proportion to the impairment of motor, sensory, or mental function. When the involvement is wholly sensory, the rating should be for the mild, or, at most, the moderate degree. 38 C.F.R. §§ 4.120, 4.124a. The Veteran’s right leg radiculopathy is currently rated as 10 percent disabling prior to November 10, 2010 and 20 percent disabling thereafter under Diagnostic Code 8520 for impairment of the sciatic nerve. The left leg radiculopathy is rated as 10 percent disabling throughout the claims period, also under Diagnostic Code 8520. Under this diagnostic code, incomplete paralysis of the sciatic nerve warrants a 60 percent evaluation if it is severe with marked muscular atrophy, a 40 percent evaluation if it is moderately severe, a 20 percent evaluation if it is moderate or a 10 percent evaluation if it is mild. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Turning first to the right leg, the Board finds that an increased rating is not warranted at any time during the claims period. Prior to November 10, 2010, the Veteran’s right leg radiculopathy most nearly approximated mild and is contemplated by the current 10 percent evaluation. The Veteran’s symptoms during this period were sensory in nature as he reported experiencing radiating pain and numbness into the right lower extremity. Physical examination at the July 2008 VA examination showed full sensation and reflexes in the lower extremities with no objective indications of neurological impairment. In October 2009 at the VA Medical Center (VAMC), the Veteran manifested decreased sensation to touch along the right leg with slightly decreased strength in the lower extremity and full deep tendon reflexes. The medical and lay evidence of numbness and radiating pain to the right leg is contemplated by the current 10 percent evaluation for mild incomplete sciatic paralysis and the Board finds that a higher rating is not warranted during the period prior to November 10, 2010. After November 10, 2010, the Veteran’s right leg radiculopathy increased to the severity contemplated by a 20 percent rating for moderate incomplete paralysis of the sciatic nerve under Diagnostic Code 8520. The May 2013 VA examiner found that the Veteran experienced severe pain in the right lower extremity, along with moderate paresthesias and severe numbness. The overall neurological impairment to the right leg was characterized as moderate incomplete paralysis of the sciatic nerve. Despite the findings of moderate radiculopathy at the May 2013 examination, VA examiners in August 2015 and March 2017 found no objective signs of radiculopathy to the right lower extremity. The March 2017 VA examiner identified some loss of muscle strength in the bilateral lower extremities and slightly decreased deep tendon reflexes in the right, but did not attribute these symptoms to neurological impairment associated with the service-connected low back disability. The Veteran’s reports of symptoms during this period continued to be sensory in nature, with complaints of radiating pain and loss of sensation. Although the Veteran’s complaints of radiating right leg pain and numbness were reported as severe in the May 2013 VA examination and during an August 2013 VAMC history and physical, the Board places more weight on the medical opinion of the May 2013 examiner who characterized the actual severity of the right leg radiculopathy as moderate incomplete paralysis of the sciatic nerve. The Board also notes that the Veteran’s complaints and objective manifestations of the disability are wholly sensory in nature and a rating higher than 20 percent is therefore not appropriate. The right leg radiculopathy is properly rated as 10 percent disabling prior to November 10, 2010 and 20 percent disabling thereafter. The Board will now address the Veteran’s radiculopathy of the left lower extremity which is evaluated as 10 percent disabling for mild incomplete paralysis of the sciatic nerve. The Veteran first complained of radiating pain into his left leg during a December 2010 visit to his VAMC provider. The May 2013 VA examiner noted that the Veteran “rarely” experienced symptoms of radiculopathy in his left leg, but when present, he experienced moderate symptoms of pain, numbness, and paresthesias. The examiner characterized the overall severity of the left leg radiculopathy as mild incomplete paralysis of the sciatic nerve. As noted above, the August 2015 and March 2017 VA examiners did not find any signs of radiculopathy of the left lower extremity, despite the Veteran’s decreased muscle strength at the March 2017 examination. Based on the sensory nature of the Veteran’s complaints and the conclusion of the May 2013 VA examiner that the Veteran’s incomplete paralysis of the left sciatic nerve most nearly approximates mild, the Board finds that a rating in excess of 10 percent for radiculopathy of the left leg is not warranted. In sum, the Veteran’s low back disability manifests orthopedic impairment that is properly evaluated as 40 percent disabling throughout the claims period. He also experiences neurological impairment manifested by radiculopathy of the right lower extremity rated as 10 percent disabling prior to November 10, 2010 and 20 percent thereafter and radiculopathy of the left lower extremity rated as 10 percent disabling throughout the claims period. The Board has considered whether there is any other schedular basis for granting higher ratings for the orthopedic and neurological impairment resulting from the Veteran’s back disability other than those discussed above, but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the grant of higher schedular ratings. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. 4. Entitlement to a rating higher than 10 percent for right knee arthritis with limitation of flexion from June 5, 2008 to December 15, 2009. 5. Entitlement to a rating higher than 20 percent for right knee instability from June 5, 2008 to December 15, 2009. Service connection for residuals of a right knee meniscectomy was awarded in an August 1987 rating decision with an initial 10 percent evaluation assigned effective April 2, 1987. In a September 2006 rating decision, the Veteran’s right knee disability was recharacterized as osteoarthritis, status post meniscectomy, and a 10 percent rating was continued from January 26, 2006 based on the criteria for evaluating arthritis. A separate 10 percent evaluation was granted for right knee lateral instability also effective January 26, 2006. An increased 20 percent rating was assigned for the right knee instability in a March 2016 rating decision effective June 5, 2008. The Veteran underwent a right total knee replacement on December 16, 2009 and his post-operative residuals are currently rated under the criteria pertaining to the placement of a prosthetic implant under 38 C.F.R. § 4.71a, Diagnostic Code 5055. The Board is only presently concerned with the ratings in place prior to the total knee replacement: during the period from June 5, 2008 to December 15, 2009 when the Veteran was in receipt of two separate right knee ratings based on limitation of motion (rated as 10 percent disabling) and instability (rated as 20 percent disabling). He contends that higher ratings are warranted during this period as his knee disability was productive of severe impairment and pain. The Board will first address the rating assigned the Veteran’s right knee disability based on osteoarthritis and limitation of motion. This aspect of the disability is currently rated as 10 percent disabling under Diagnostic Code 5010-5260 based on a finding of painful limited motion. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27. Under Diagnostic Code 5010, arthritis, due to trauma and substantiated by X-ray findings, is rated as degenerative arthritis under Diagnostic Code 5003. This diagnostic code provides for a 10 percent rating for each major joint or group of minor joints affected by noncompensable limitation of motion. An increased rating of 20 percent is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. X-rays performed throughout the claims period document findings of osteoarthritis in the right knee and rating the disability for arthritis is appropriate. However, the service-connected disability currently on appeal is clearly limited to one joint: the right knee. Thus, a rating higher than 10 percent is not warranted under Diagnostic Code 5003. The criteria for evaluating arthritis provides for a 10 percent evaluation with noncompensable limitation of motion. An increased rating is therefore possible if the evidence establishes restricted motion of the right knee that is compensable under Diagnostic Codes 5260 and/or 5261. For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. Limitation of flexion of a leg warrants a 10 percent evaluation if flexion is limited to 45 degrees and a 20 percent evaluation is assigned if flexion is limited to 30 degrees. Flexion that is limited to 15 degrees is evaluated as 30 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension of a leg warrants a 10 percent evaluation when it is limited to 10 degrees and a 20 percent evaluation when it is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Throughout the relevant claims period, the Veteran manifested noncompensable limitation of motion of the right knee with extension to -5 degrees and flexion to 90 degrees or better. Right knee motion was most restricted at the July 2008 VA examination when the Veteran’s right knee manifested flexion to 110 degrees with full extension to 0 degrees and pain at 90 degrees of flexion and -5 degrees of extension. VAMC treatment records document other instances of right knee motion testing during the claims period, but the Veteran consistently demonstrated full extension to 0 degrees and flexion to at least 100 degrees when tested by his treating physicians. The objective evidence therefore demonstrates that the Veteran was functionally able to flex his right knee to 90 degrees before experiencing pain and similarly extend the knee to -5 degrees. Flexion limited to 90 degrees and extension to -5 degrees are noncompensable under Diagnostic Codes 5260 and 5261 and are contemplated by the current 10 percent evaluation for degenerative arthritis under Diagnostic Codes 5010 and 5003. The Board has considered whether a higher rating is warranted based on various functional factors. The July 2008 VA examiner’s report of knee motion took into account the point at which knee pain began and the examiner determined that there was no additional loss of motion following repetitive use. The examiner also determined that the Veteran could stand for approximately eight minutes and walk approximately 25 yards due to right knee dysfunction. The Board has considered the Veteran’s reports of increased pain during this period, but notes that his increasing pain symptomatology resulted in a right total knee replacement in December 2009 and the assignment of higher ratings for post-surgical residuals. During the period prior to December 16, 2009, the Veteran’s right knee clearly resulted in functional impairment, but the objective medical evidence establishes that this impairment did not result in limitation of motion less than 90 degrees of flexion or less than -5 degrees of extension even with consideration of functional factors. A 10 percent rating based on painful noncompensable limited motion is therefore appropriate throughout the claims period. 38 C.F.R. § 4.71a. The Board must now address whether a separate rating higher than 10 percent is warranted for the Veteran’s right knee based on instability. See VAOPGCPREC 23-97 (a claimant who has arthritis and instability of the knee may be rated separately under diagnostic Codes 5003 and 5257). Recurrent subluxation or lateral instability warrants a 10 percent evaluation if it is slight, a 20 percent evaluation if it is moderate, or a 30 percent evaluation if it is severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Veteran maintains that he experienced instability of the right knee that prior to December 2009 that led to frequent falls. The right knee was stable on objective testing during the July 2008 VA examination and during an October 2009 evaluation at the VAMC. However, mild to moderate instability was noted by a VAMC physician in August 2009. The Board therefore finds that the medical and lay evidence establishes that the Veteran’s right knee disability manifests instability that is no more than moderate during the claims period. Accordingly, the current 20 percent rating for slight instability is the appropriate evaluation for the Veteran’s right knee disability under Diagnostic Code 5257 from June 5, 2008 to December 15, 2009. The Board has considered whether there is any other schedular basis for granting a higher rating, but has found none. There is no evidence of dislocated semilunar cartilage with frequent episodes of “locking,” with pain and effusion into the joint as required for a 20 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5258. The Veteran has also not demonstrated knee ankylosis or impairment of the tibia and fibula and Diagnostic Codes 5256 and 5262 are not for application. Therefore, the Veteran’s right knee is properly rated as 10 percent disabling based on noncompensable painful motion and 20 percent disabling for instability. 6. Entitlement to a TDIU. VA will grant a TDIU when the evidence shows that the Veteran is precluded due to service-connected disabilities from obtaining or maintaining “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The Veteran met the schedular criteria for an award of TDIU throughout the claims period and has a current combined disability evaluation of 90 percent. See 38 C.F.R. § 4.16(a) (providing that the schedular criteria are met if there are two or more service-connected disabilities with one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more); 38 C.F.R. § 4.25, Table I (Combined Ratings Table). The Board finds that a TDIU is warranted. The Veteran worked as a security guard until 1990 when he was hired as a mail sorter with the United States Postal Service (USPS). The Veteran worked with the post office until January 2005 when he was arrested and charged with tampering with the mail. Thereafter, he performed marginal employment in various temporary positions and ceased all employment in approximately October 2006. VA examiners throughout the claims period have concluded that the Veteran’s service-connected disabilities, especially his right knee and low back conditions, limit his ability to perform physical labor and to sit or stand for prolonged periods. Based on the Veteran’s limited employment history and the severe restrictions to activity associated with his service-connected disabilities, the Board finds that a TDIU is warranted and the claim is granted. REASONS FOR REMAND 1. Entitlement to a higher rating for residuals of a right total knee replacement, rated as 30 percent disabling from February 1, 2011 to March 23, 2017, and as 60 percent disabling thereafter. The Board regrets further delay in this case, but finds that a remand is necessary to comply with the Board’s past remand instructions. In February 2017 and September 2017 remands, the Board ordered that VA should obtain an addendum medical opinion (or an additional examination) providing numerical range of motion results for active and passive motion of the right knee. The March 2017 VA examiner provided addendum reports—dated in March 2017 and October 2017—but the reports did not provide the information requested by the Board. An October 2017 email also indicated that the examiner would not provide any further information regarding the Veteran’s right knee. It is therefore clear that the examiner will not comply with the Board’s instructions and remanding the claim for an additional examination is required to ensure compliance with the duty to assist the Veteran. The matter is REMANDED for the following action: Schedule the Veteran for an examination of the current severity of his residuals of a right total knee replacement with an examiner who did not participate in the March 2017 VA examination. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also 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 residuals of a right total knee replacement alone and discuss the effect of the Veteran’s 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). M. H. Hawley Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Riley, Counsel