Citation Nr: 21066096
Decision Date: 10/28/21	Archive Date: 10/28/21

DOCKET NO. 16-54 109
DATE: October 28, 2021

REMANDED

Entitlement to an initial rating in excess of 20 percent for degenerative arthritis of the right knee is remanded.

REASONS FOR REMAND

The Veteran served on active duty from June 1972 to September 1975. These matters come before the Board on appeal from a March 2016 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). 

In August 2019, the Veteran attended a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. 

The issue on appeal was remanded by the Board in February 2021 for evidentiary development, to include obtaining a new VA examination for the Veteran's right knee arthritis. The Veteran was afforded this examination in May 2021. As will be explained in greater detail below, the May 2021 examination report is incomplete. Accordingly, the Board finds that there has not been substantial compliance with the February 2021 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

Entitlement to an initial rating in excess of 20 percent for degenerative arthritis of the right knee is remanded.

In the February 2021 Board remand, the Board directed the RO to afford the Veteran a new VA examination. The Board finds that the May 2021 VA examination report is incomplete and thus inadequate for adjudication purposes. Specifically, although the examination report notes right knee persistent instability, the report does not provide results for right knee instability testing or otherwise describe the relative severity of the Veteran's right knee instability.

If VA provides the Veteran with a medical examination, it must ensure that such examination is an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) ("[O]nce the Secretary undertakes the effort to provide an examination when developing a claim..., even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided."). Further, a remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. 

Accordingly, the Board finds that a new VA examination should be obtained.

The matters are REMANDED for the following action:

1. Schedule the Veteran for a VA medical examination with an appropriate qualified physician to assess the current severity of his service-connected right knee disability. All necessary diagnostic testing and evaluation should be performed, and all findings set forth in detail.

2. Based upon a review of the entirety of the claims file, the history presented by the Veteran, and the examination results, the examiner is asked to describe the nature and severity of any current symptomatology and functional impairment related to the Veteran's service-connected right knee arthritis.

 

 

Cynthia M. Bruce

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Russell, Tangela

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.