Citation Nr: 21063804 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-28 669A DATE: October 18, 2021 REMANDED Entitlement to a rating in excess of 10 percent for right knee tendonitis is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1989 to April 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA). In April 2021, the Board remanded this matter for further development. The agency of original jurisdiction (AOJ) was asked, among other things, to procure a medical examination and opinion discussing the Veteran's reports of functional loss during flare-ups. The examiner was specifically told "if flare-ups are not reported at the time of examination, or if repetitive use testing, including over time, is not feasible, the examiner must estimate the additional [range of motion] loss in degrees during earlier periods on appeal when flare-ups were reported, as well as after repetitive use, including over time." The Veteran underwent a VA examination in June 2021. After reviewing the examination report, the Board finds that substantial compliance is not established and further remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (2011) (holding that the Board errs when it fails to ensure substantial compliance with its own remand directives). 1. Entitlement to a rating in excess of 10 percent for right knee tendonitis is remanded. The Board finds that this matter must be remanded for an addendum medical opinion addressing the Veteran's reported flare-ups, including at the June 2017 VA examination. and providing, if possible, a retroactive estimate of functional loss during such periods. See 38 U.S.C. § 5103A(d). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flare ups from the veterans themselves when a flare-up is not observable at the time of examination. Such information must be considered in rating the Veteran's functional impairment. The June 2021 VA examiner noted that the Veteran did not report current flare-ups. When asked to retroactively estimate the Veteran's functional loss during earlier periods of flare-ups within the appeal period, she stated "no flare-ups reported, pain is reported for repeated use and estimated at ~130-0." The Board finds that this opinion does not substantially comply with the prior remand directives because the examiner failed to provide a retroactive estimate of functional loss during flare-ups based on the Veteran's reports at the June 2017 VA examination or explain that she was unable to do so because of limitations of general medical knowledge. An addendum medical opinion is necessary. The matter is REMANDED for the following action: Obtain an addendum medical opinion from any suitably qualified clinician regarding the Veteran's functional loss during flare-ups of right knee symptoms, as reported in June 2017. The clinician is asked to review the claims file and to opine on the following: Estimate the extent of any additional functional loss (expressed in degrees of lost range of motion) during periods of flare-ups, based on the Veteran's reports of flare-ups during the June 2017 VA exam. In doing so, the examiner is asked to consider information on the characteristics, severity, frequency, and duration of the Veteran's flare-ups. If an estimate cannot be provided, the examiner must indicate that he or she has considered all procurable and assembled data, and that the inability to provide an estimate results from limitations in the knowledge of the medical community at large, and not a limitation of personal knowledge. The examiner is asked to consider and discuss the following: VA examination report in June 2017, in which the Veteran reported flare-ups when "changing position from sitting to standing and walking up and downstairs causes the pain to intensify" MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Reed, 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.