Citation Nr: 21061974 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 10-49 232 DATE: October 6, 2021 REMANDED Entitlement to a higher rating for right knee degenerative arthritis is remanded. Entitlement to a higher rating for residuals of a right knee injury with anterior cruciate ligament and meniscal tears based on instability is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1988 to October 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2011, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In a March 2015 decision, the Board granted a 30 percent rating for right knee degenerative arthritis prior to July 2, 2009; granted a 20 percent rating for right knee degenerative arthritis from July 2, 2009 through September 8, 2009; denied a rating in excess of 10 percent for right knee degenerative arthritis beginning November 1, 2009; granted a 10 percent rating for residuals of a right knee injury with anterior cruciate ligament and meniscal tears based on instability prior to September 9, 2009; and denied a compensable rating for residuals of a right knee injury with anterior cruciate ligament and meniscal tears based on instability beginning November 1, 2009. Thereafter, the Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In a January 2017 Joint Motion for Partial Remand (Joint Motion), the parties moved the Court to vacate the Board's March 2015 decision, except insofar as it was favorable to the Veteran. The Court granted the Joint Motion and remanded the claim for action consistent with the terms of the Joint Motion. The claims were remanded by the Board in April 2017, January 2018, July 2019, November 2020, and May 2021 for further development. 1. The claim for a higher rating for right knee degenerative arthritis is remanded. 2. The claim for a higher rating for residuals of a right knee injury with anterior cruciate ligament and meniscal tears based on instability is remanded. In the January 2017 Joint Motion, the parties agreed that the Board erred in relying on VA examinations which did not include range of motion testing in weight-bearing or an explanation as to why such testing could not be performed, as required by Correia v. McDonald, 28 Vet. App. 158, 170 (2016). The Board most recently remanded the claims in May 2021 in order to obtain a VA examination that complies with the terms of the January 2017 Joint Motion. Thereafter, the Veteran underwent another VA examination in August 2021. The examiner indicated that the Veteran had pain with weight-bearing and "[d]ifficulty with weight bearing due to knee pain and [decreased range of motion]." However, the examiner again failed to obtain range of motion testing results in weight-bearing or provide an explanation as to why such testing could not be performed. Although the Board sincerely regrets the delay, the Board cannot proceed with the adjudication of the Veteran's appeal until there is substantial compliance with the terms of the January 2017 Joint Motion. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Court or 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: 1. Schedule the Veteran for a VA examination of his right knee. After examination, the examiner must answer the following: (a.) Is it possible to obtain range of motion measurements in degrees for the right knee while in weight bearing? (b.) If it is possible to obtain range of motion measurements in degrees for the right knee while in weight bearing, provide such measurements. (c.) If it is not possible to obtain range of motion measurements in degrees for the right knee while in weight bearing, the examiner must explain why such testing cannot be performed. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Banister, 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.