Citation Nr: 20041002 Decision Date: 06/16/20 Archive Date: 06/16/20 DOCKET NO. 09-37 331 DATE: June 16, 2020 REMANDED Entitlement to an increased rating for right knee strain disability, evaluated as 10 percent disabling (with the exception of a 100 percent rating from October 27, 2014 to January 1, 2015) is remanded. REASONS FOR REMAND The Veteran had active service from August 1969 to August 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland Ohio. The Veteran testified at an October 2012 Board hearing. This matter was previously remanded by the Board in February 2013, and again in February 2018. The Board finds that there has not been substantial compliance with the directives of its February 2018 remand. Thus, another remand is warranted. Entitlement to an increased rating for right knee strain disability, evaluated as 10 percent disabling In its February 2018 remand, the Board directed that the Veteran be afforded a VA examination, and that the report include testing of both active and passive ranges of motion, the Veteran’s description of flare-ups (i.e. frequency, duration, and severity), and a retrospective clinical opinion on his knee symptoms since 2008. The most recent VA examination was in May 2018; however, the May 2018 examination report does not provide the complete information requested by the Board. Thus, another examination is warranted. With regard to range of motion testing, the examiner must specifically state the range of motion for active flexion and extension, and the range of motion for passive flexion and extension. If the ranges are the same for both active and passive, the examiner must state such. With regard to flare-ups, the 2018 examination report notes that the Veteran described his flare up as “more pain on use”. The examiner should attempt to elicit more information (i.e. frequency, duration, and severity) from the Veteran. With regard to a retrospective opinion, the 2018 examiner stated, “exams in past are independent cant be compared”. The Veteran had examinations in April 2008, May 2011, January 2015, and June 2016. The Board finds that it might be helpful for the examiner to review the examination reports with the Veteran and to ascertain the level of severity not already noted in the examination reports (i.e. does the Veteran remember having flare-ups causing significant functional impairment, and if so, how often and for how long a time; can the Veteran or the examiner quantify any additional functional impairment not noted in the examination reports?). The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to address the current severity of his right knee disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. a. With regard to range of motion testing, the examiner must specifically state the range of motion for active flexion and extension, and the range of motion for passive flexion and extension. If the ranges are the same for both active and passive, the examiner must state such. The examiner should state where objective evidence of pain begins on flexion and extension. b. With regard to flare-ups, the examiner should attempt to elicit from the Veteran more information than just “increased pain” or “pain on use” when describing flare-ups. The examiner should request the Veteran to state the frequency, duration, severity, precipitating event, and additional degree of limitation during a flare-up. c. The examiner should provide a retrospective opinion for the Veteran’s right knee disability from 2008 forward. The examiner should review the April 2008, May 2011, January 2015, and June 2016, and May 2018 VA examination reports with the Veteran, and ascertain the level of severity not already noted in the examination reports (i.e. does the Veteran remember having flare-ups causing significant functional impairment, and if so, how often and for how long a time?; can the Veteran or the examiner quantify any additional functional impairment not noted in the examination reports?). The examiner should also consider that the Veteran had right knee surgery in 2014. If it is not possible to provide a specific measurement 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). The examiner does not need to test the left knee because it is not an undamaged joint. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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.