Citation Nr: 21066532 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 11-31 759A DATE: November 1, 2021 REMANDED The claim for a rating in excess of 10 percent for right knee limitation of flexion is remanded. The claim for a rating in excess of 10 percent for right knee subluxation/instability is remanded. The claim for a compensable rating for right knee limitation of extension is remanded. The claim for a rating in excess of 20 percent for right knee meniscal impairment from April 4, 2011 is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1972 to August 1992. In a September 2019 decision, the Board, in part, denied ratings in excess of 10 percent for right knee limitation of flexion and subluxation/instability, denied a compensable rating for right knee limitation of extension; and denied a rating in excess of 20 percent for right knee meniscal impairment from April 4, 2011. The Veteran appealed the Board's September 2019 decision to the United States Court of Appeals for Veterans Claims ("the Court"). In November 2020, the Court issued an order that vacated the Board decision and remanded the claims for compliance with a Joint Motion for Partial Remand (JMPR). In the November 2020 JMPR, the parties agreed, in part, that the Board did not consider the ameliorative effects of medication when evaluating the current nature and severity of the Veteran's right knee disabilities. See JMPR at page (pg.) 3)). VA examiners throughout the appeal have indicated that the Veteran took medication for his right knee disabilities, but they did not consider the ameliorative effects of medication when evaluating the current nature and severity of those disabilities. See Jones v. Shinseki, 26 Vet. App. 56 (2012) (when a Diagnostic Code is silent as to the effects of medication, VA may not deny entitlement to a higher disability rating based on the relief provided by medication). In April 2021, the Board remanded the issues to afford the Veteran a VA examination of his knees. In its remand directives, the Board requested that the examiner was requested, in part, to "Describe to the extent possible the Veteran's range of motion in his right knee, without the benefit of any ameliorative impacts of his medication." The examiner was requested to provide an explanation if such findings could not be accomplished. See April 2021 Board remand at page (pg.) 7)). In August 2021, VA examined the Veteran's right knee. See August 2021 Knee and Lower Leg Disability Benefits Questionnaire (DBQ)). Upon examination of the right knee, the VA examiner indicated, in pertinent part, that the Veteran had active right knee flexion and extension to 90 and zero degrees, respectively, with pain. The examiner also indicated that the Veteran experienced functional loss of the right knee with pain on weight-bearing, non-weight-bearing, active motion and rest/non-movement. Aside from noting that the Veteran's right knee flare-ups were alleviated by pain medication and ice packs, the August 2021 examiner did not provide the range of motion of the Veteran's right knee without the benefit of any ameliorative impacts of medication, or explain why such findings could not be accomplished, as requested by the Board in its April 2021 remand directives. The questions posed by the Board are derivative of a JMPR, which is considered to be the law of the case, and the Board has little room to deviate from compliance with it. The fact remains that the Board appreciates the efforts to answer the overarching question in this case, but the examiner failed to specifically address the evidence he was asked to discuss. As such, his opinion failed to substantially comply with the Board's remand, and the Veteran's claims are remanded due to noncompliance with the April 2021 Board remand. See Stegall, 11 Vet. App. 268. The matters are REMANDED for the following action: Obtain an addendum opinion to the August 2021 Knee and Lower Leg VA examination. If an opinion cannot be provided without an examination, one should be provided. The examiner should provide an opinion that directly responds to the following question: To the extent possible, estimate the range of motion in the Veteran's right knee, were he to be without the ameliorative impact of his medication. If such cannot be done, it should be explained why. In providing the opinion, the examiner should review the joint motion for remand and appellate brief ("CAVC decision" received 11/25/2020, p. 11-15 & 21-24) for an explanation of what is required in the medical opinion. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Carole Kammel, 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.