Citation Nr: 21000007 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 13-11 870 DATE: January 4, 2021 REMANDED Entitlement to an initial evaluation in excess of 10 percent for a left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1986 to April 2006. This case is before the Board of Veterans’ Appeals (Board) on appeal from a June 2011 Regional Office (RO) rating decision. The Veteran’s notice of disagreement (NOD) was received in September 2011. The RO issued a statement of the case (SOC) in March 2013. The Veteran’s VA Form 9, substantive appeal to the Board, was received in April 2013. As a final matter, during the pendency of the appeal, in a July 2019 rating decision, the Agency of Original Jurisdiction (AOJ) awarded the Veteran a 10 percent evaluation for his left knee disability, effective July 23, 2010—the date of his assigned award of service connection. Accordingly, the Board has recharacterized the appeal as above in order to comport with this award of benefits. This case was previously before the Board in November 2016, when the Board remanded for a new examination because the December 2010 VA examination did not comport with Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). Another VA examination occurred in December 2016. In August 2018, the Board again found the December 2016 examination suffered the same Correia deficiencies as the 2010 examination and remanded for another examination. The AOJ obtained another VA examination in April 2019, in compliance with the Board’s August 2018 remand directives. The AOJ subsequently sought an addendum opinion in September 2019, and then ordered a completely new examination in March 2020. In March 2020, the Veteran’s left knee had normal range of motion and no flare-ups were noted. However, this is internally inconsistent with the Veteran’s reports of record and the December 2016 and April 2019 VA examination reports. The examiner does not acknowledge or even discuss these discrepancies in his report. Accordingly, the Board finds the March 2020 examination is inadequate and a remand is necessary in order for a new VA examination with a different VA examination be afforded to the Veteran. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise); see also Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). The matters are REMANDED for the following action: Afford the Veteran an appropriate VA examination with an examiner who has not previously participated in this case to determine the current nature and severity of his service-connected left knee disability. All indicated tests and studies should be undertaken. The record, including a complete copy of this Remand, must be made available for review with the examination. If possible, such examination should be conducted during a flare-up. Full range of motion testing must be performed where possible. The right knee and ankle should be tested for pain in both active and passive motion, in weightbearing and non-weightbearing. If the examiner 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 is further reminded that should any additional functional impairment be noted during flare-up, repeated use, and/or as a result of pain, lack of endurance, incoordination, etc., the examiner should attempt, to the best of his/her ability, to estimate the additional functional loss in degrees. If additional functional loss cannot be estimated, the examiner must provide an explanation for the inability to provide such an estimation. The examiner is reminded that merely not observing the Veteran during flare-ups, etc., is not an adequate rationale for not estimating additional functional loss. If the examiner’s findings and conclusions are internally inconsistent with previous findings, such as the December 2016 and April 2019 examination findings, the examiner should otherwise state the reason for this discrepancy. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Ardalan, Associate 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.