Citation Nr: 20030197 Decision Date: 04/29/20 Archive Date: 04/29/20 DOCKET NO. 06-02 333 DATE: April 29, 2020 REMANDED Entitlement to an initial disability rating in excess of 20 percent for degenerative joint disease, right ankle is remanded. Entitlement to an initial disability rating in excess of 10 percent prior to October 26, 2004 for degenerative arthritis, left ankle, and in excess of 20 percent thereafter is remanded. Entitlement to an initial disability rating in excess of 10 percent prior to August 1, 2018 for left total knee replacement, and in excess of 30 percent thereafter is remanded. INTRODUCTION The Veteran had active service from February 1978 to September 1984 and April 1985 to April 1988. When this case was most recently before the Board in November 2018 the above-noted issues were remanded for additional development. The case has since been returned for further appellate review. REASONS FOR REMAND Although further delay is unfortunate, the Board finds additional development is necessary prior to final adjudication of this matter. Initially, the Board notes that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As noted in the Board’s November 2018 remand, in Correia v. McDonald, 28 Vet. App. 158 (2016), the Court determined the final sentence of 38 C.F.R. § 4.59 requires VA examinations to include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. As such, under Correia there is a need for testing for pain on both active and passive motion and, if possible, when weight-bearing and nonweight-bearing. In the course of the November 2018 remand, the Board found the reports of August 2014 and November 2017 VA examinations to be insufficient, because the examiner failed to conduct Correia compliant testing. The Board specifically observed that the examination was not Correia compliant because the examiner failed to provide an assessment of the Veteran’s range of motion when weight bearing and non-weight bearing. Following the above-noted remand, the Veteran underwent VA ankle and knee examinations in August 2019. Unfortunately, the examiner ignored the Board’s instructions and failed to provide a range of motion assessment on both weight bearing and non-weight bearing. Further, in a recent decision, Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court explained that VA examiners must do all that can be reasonably done to become informed about a veteran’s reported musculoskeletal flare-ups prior to providing an opinion on functional loss during flares. The Court explained that examiners must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, before concluding an assessment of the functional loss during flares could not be provided without resorting to speculation. The August 2019 VA examiner acknowledged the Veteran’s reports of ankle and knee flare-ups; however, the examiner did not consider all procurable data, to include precipitating and alleviating factors, or explain why such evidence did not permit the examiner to offer an estimation of the functional loss during flare-ups in this case. Since the August 2019 examiner, like the August 2014 and November 2017 VA examiners, failed to provide critical evaluative evidence substantial compliance with the Board’s November 2018 remand has not been achieved. Therefore, new examinations must be obtained at this time from a qualified examiner. Accordingly, the case is REMANDED for the following action: Afford the Veteran a VA examination by an examiner with sufficient expertise, who has not previously examined the Veteran, to fully assess the severity of the Veteran’s service-connected left knee and bilateral ankle disabilities. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight-bearing and nonweight-bearing range of motion assessments. In addition, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of any flare-ups, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Fraser, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.