Citation Nr: 21062866 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 10-33 371 DATE: October 12, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for left knee patellofemoral syndrome from September 1, 2009 is remanded. INTRODUCTION The Veteran served on active duty from January 1997 to August 1999. In April 2019, the United States Court of Appeals for Veterans Claims (Court) granted a joint motion for remand and returned the above-noted issue to the Board for action consistent with the joint motion. When this case was before the Board in August 2019 and October 2020 the above-noted issue was remanded for additional development. The case has now been returned to the Board for further appellate review. REASONS FOR REMAND Though untenable, the Board finds further development is yet again required before the Veteran's remaining claim is decided. As the Board has previously stated on numerous occasions, a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has also previously indicated that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Though the above-noted claim has been remanded several times in order to obtain an adequate VA examination, to date, substantial compliance with these Board instructions has not been achieved. As such, a remand is yet again required. In prior remands, the Board specifically indicated that to be considered adequate, a musculoskeletal examination must include an assessment of the veteran's flare-ups, as well as range of motion measurements in weight bearing, non-weight bearing, and in passive motion. See Sharp v. Shulkin, 29 Vet. App. 26 (2017); see also Correia v. McDonald, 28 Vet. App. 158 (2016). The Board also expressly noted the Veteran's prior reports of flare-ups. Though the Veteran underwent another VA examination in June 2021, the examiner failed to provide weight-bearing and non-weight bearing range of motion assessments. Additionally, the examiner indicated the Veteran did not experience flare-ups, though he has carefully chronicled his painful flare-ups on previous occasions. The RO subsequently obtained an addendum medical opinion in July 2021 from an examiner who had not previously examined the Veteran. In part, the physician who specializes in obstetrics and gynecology found there would be no loss in the Veteran's range of motion due to flares, but he wholly failed to explain how or why he came to this conclusion. Additionally, the examiner also failed to address the procurable evidence noted in Sharp. Therefore, the above-noted medical reports contain the same flaws noted in the prior VA examinations, and a remand is necessary to obtain an examination that satisfies sufficiency standards. Accordingly, the case is REMANDED for the following action: Afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran's service-connected left knee disability. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight-bearing and nonweight-bearing range of motion assessments. In addition, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Fraser, 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.