Citation Nr: 21062207 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 16-09 370 DATE: October 6, 2021 REMANDED Entitlement to a rating in excess of 10 percent for degenerative joint disease of the left knee (left knee arthritis) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1979 to February 1999. This case comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). A September 2020 Board decision denied a rating in excess of 10 percent for degenerative joint disease of the left knee. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). An Order of the Court, dated in June 2021, granted a Joint Motion for Remand (JMR), vacating the September 2020 Board decision and remanding the claim to the Board. Entitlement to a rating in excess of 10 percent for left knee arthritis is remanded. The Veteran contends that his left knee disability has increased in severity such that it is equivalent to loss of use. See VA 21-4138, Statement in Support of Claim (June 2013); NOD (January 2015); Form 9 (March 2016). A September 2018 Board decision found the September 2016 VA examination did not comply with the requirements of Sharp v. Shulkin, 29 Vet. App.26, 34-36 (2017) or Correia v. McDonald, 28 Vet. App.158, 168 (2016) (accounting for pain, incoordination, weakened movement, and excess fatigability on use in terms of additional degrees of limitation of motion and provide range of motion findings on both active and passive motion, and in weight-bearing and non-weight-bearing circumstances). Next, the Board remanded the claim for a new VA examination that included finding for pain on both active and passive motion, in weight-bearing and nonweight-bearing to assess the effect of painful motion. See Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). Here, although VA obtained a July 2019 VA examination, it is inadequate for adjudicative purposes. Specifically, although pain on the passive and non-weight-bearing planes of motion was noted, the examiner did not to include whether the pain decreased Veteran's range of motion on those planes. See C&P Exam (July 2019). Therefore, it does not comply with Correia. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that it is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate clinician to determine the current severity of his service-connected left 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. As to the below, if it is not possible to provide a specific measurement 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). (a.) Current Findings: Test the Veteran's active motion, and passive motion, with weight-bearing and without weight-bearing. Note: The examiner should determine the effective ROM for the disability and present the results of ROM tests in a written report which complies with 38 C.F.R. § 4.59 by recording separate sets of the ROM test results for both active and passive motion, and in weightbearing and non-weightbearing. The examiner's report should describe objective evidence of painful motion, if any, during each test. IT IS NOT SUFFICIENT MERELY TO INDICATE WHETHER OR NOT PAIN WAS PRESENT DURING ONE OF THE REQUIRED ROM TESTS. If any of these findings are not possible, please provide an explanation. (b.) Retrospective Findings: Provide an addendum retrospective opinion for the Veteran's service-connected left knee disability to supplement the September 2016 and July 2019 VA Examination Reports that: i. Estimates the Veteran's active motion, and passive motion, with weight-bearing and without weight-bearing based on the evidence of record (including the September 2016 and July 2019 VA examination report) and the Veteran's statements at the time of the September 2016 and July 2019 VA examination. ii. IT IS NOT SUFFICIENT MERELY TO INDICATE WHETHER OR NOT PAIN WAS PRESENT DURING ONE OF THE REQUIRED ROM TESTS. iii. If it is not possible to estimate a specific measurement 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). 2. Readjudicate. 3. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Edwards 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.