Citation Nr: 21062236 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 13-03 164A DATE: October 6, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for the period prior to November 24, 2020 for subpatellar chondromalacia, right knee with scar, and in excess of 20 percent, thereafter, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1981 to February 1985 and December 1991 to July 1994. In May 2019, the Veteran testified during a travel Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. Procedural History In October 2019, as pertinent here, the Board remanded the increased rating claim for subpatellar chondromalacia, right knee with scar for additional development. See Board Decision and Remand dated October 2, 2019. Additionally, the January 2021 rating decision increased the rating for subpatellar chondromalacia, right knee with scar, to 20 percent, effective November 24, 2020, which is considered a partial grant of the benefits sought on appeal for that claim. As such, the increased rating claim remained on appeal. A.B. v. Brown, 6 Vet. App. 35 (1993). In April 2021, the Board again remanded the claim to ensure compliance with its remand directives, to include providing the Veteran with a new VA examination and as part of that examination obtaining new imaging studies of the right knee to determine if the joint is affected by traumatic arthritis. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). In a May 2021 rating decision, the AOJ granted a separate 10 percent rating for subpatellar chondromalacia, right knee with scar and degenerative arthritis, effective November 24, 2020, which is considered a partial grant of benefits sought on appeal. As such, the increased rating claim remains on appeal. See A.B., supra. May 2021 VA Examination Regrettably, the Board finds that there has not been substantial compliance with its April 2021 remand directives regarding the right knee claim. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand); see Stegall, supra. Pursuant to the Board's April 2021 remand, the AOJ specified that imaging studies of the Veteran's right knee were to be obtained in conjunction with a new knee examination. However, the VA examiner apparently ignored the Board's remand in this regard and relied instead on 2009 x-rays the Board previously found to be dated for rating purposes. See Board Remand dated April 8, 2021 at pgs. 2-3. Additionally, the examiner opined, "the Veteran has degenerative changes in the right knee joint that is [sic] at least as likely as not progressed at this point [sic] due to the severity of pain and limitation of movement in the knee joints [sic]. Thus, the established diagnosis should include degenerative arthritis involving the right knee with instability." See VA knee and lower leg examination report dated May 17, 2021 at pg. 20. Absent current right knee joint imagery, the examiner's diagnosis is essentially a best guess, as it were, rendering the opinion and diagnosis speculative. Bloom v. West, 12 Vet. App. 185, 187 (1999) (a medical opinion based on speculation, without supporting data or other rationale, does not provide the required degree of medical certainty); see Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Considering the reasons for the Board's request for new knee imagery as reflected in its April 2021 remand, and given that the diagnostic tools to obtain new imagery of the Veteran's right knee are readily available to VA, the Board cannot conclude that there has been substantia compliance with its April 2021 remand. See Board Remand dated April 8, 2021 at pg. 5 (Directive 3). Accordingly, remand is necessary to obtain imaging studies of the Veteran's right knee and an addendum to the May 2021 VA examination report to ensure that the Board's evaluation of the Veteran's claim is a fully informed one. Stegall, supra; see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate). The matter is a REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Then, schedule the Veteran for VA imaging studies, such as x-rays, of his RIGHT KNEE. 3. In conjunction with the imaging studies, obtain an addendum to the May 2021 VA knee and lower leg examination report from an appropriately qualified VA physician (M.D.) not previously associated with this claim as to the severity of the Veteran's service-connected right knee disabilities. The claims file, including newly obtained imaging studies of the Veteran's right knee and a copy of this Remand, must be made available to, and be reviewed by the examiner. *The examiner's review of the body of this Remand is recommended to assist in avoiding errors that have resulted in deficiencies in the May 2021 VA examination. *The need for another examination is left to the discretion of the medical professional offering the addendum. Should an examination be necessary, all indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. After a thorough review of the record and the newly obtained imaging studies of the Veteran's right knee, the examiner is asked to respond to the following: (a) Address the Veteran's assertion that what VA has identified as subpatellar chondromalacia also involves traumatic arthritis, as noted in the transcript of the May 13, 2019 Board of Veterans Appeals hearing (see VBMS "Hearing Transcript" 05/13/2019). Please obtain new imaging studies, such as x-rays, to make this determination. **If the examiner is unable to address the Veteran's assertion without resort to speculation, the examiner must explain why. IF, and only if, the examiner physically examines the Veteran, the examiner shall also respond to (b) through (d) as follows: (b) Elicit from the Veteran all signs and symptoms of his service-connected right knee disability(s), to include during repetitive use and/or during a flareup. (c) Full range of motion (ROM) testing must be performed where possible. The joints involved should be tested, including for pain, in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in non weight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). (d) In assessing functional loss, flare-ups and increased functional loss on repetitive use must be considered. The examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of any additional degrees of limitation of motion, including impact on performing work or worklike tasks. **If the examiner determines that flare-ups and/or repeated use over time cause variable reductions in ROM of the affected joints, he or she must use information obtained from the Veteran to estimate variations in reduced ROM in terms of degrees. **All ROM measurements, including those reflecting additional limitation of motion due to flare-ups and repeated use over time, must be recorded in the appropriate sections provided in the examination form. **If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). A complete rationale should be provided for all opinions. 4. Thereafter, ensure that the examiner has obtained and reviewed IMAGING STUDIES of the Veteran's right knee and substantially responded to the questions posed by the Board, and if not, take corrective action. Then, readjudicate the remanded claim. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, 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.