Citation Nr: 21066997 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 12-20 974A DATE: November 3, 2021 REMANDED Entitlement to a rating in excess of 10 percent for left knee patellofemoral pain syndrome is remanded. Entitlement to a rating in excess of 10 percent for right knee patellofemoral pain syndrome is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1988 to June 1989 and from May 1994 to May 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in September 2010 by a Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2016, the Veteran was advised that his requested Board hearing before a Veterans Law Judge was scheduled for April 2016; however, he failed to appear for the hearing and has not requested that such be rescheduled based on good cause. Therefore, his request for a hearing is considered withdrawn. 38 C.F.R. § 20.603 (d). In February 2017, the Board remanded the claim for additional development and, in February 2019, denied increased ratings for left and right knee disabilities. Thereafter, the Veteran appealed such denial to the United States Court of Appeals for Veterans Claims (Court). In April 2020, the Court granted the Veteran's and the Secretary of VA (the parties') Joint Motion for Partial Remand (JMPR), which vacated and remanded the February 2019 decision. In November 2020 and May 2021, the case was remanded for additional development consistent with the April 2020 JMPR, and now returns for further appellate review. 1. Entitlement to a rating in excess of 10 percent for left knee patellofemoral pain syndrome. 2. Entitlement to a rating in excess of 10 percent for right knee patellofemoral pain syndrome. Although the Board regrets the additional delay, another remand is necessary as there has not been substantial compliance with the May 2021 Board remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance); D'Aries v. Peake, 22 Vet. App. 97 (2008) (while strict compliance to the terms of the remand is not necessary, there must be at least a substantial compliance to the remand orders). In this regard, the May 2021 remand directed the Veteran be scheduled for VA examination to determine the current nature and severity of his bilateral knee disabilities. The VA examiner was specifically requested to assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner was to provide a detailed explanation and rationale for why such could not be accomplished. Thereafter, in July 2021, the Veteran underwent the requested examination. At such time, the Veteran reported moderate flare-ups 3 to 4 times a week, which cause sharp pain, weakness, and stiffness. Further, he stated if such flare-ups occur at work, he must stop working. The Veteran was not examined during a flare-up, nor after repeated use over time. However, the examiner indicated the statements of the Veteran did not suggest that pain, fatigability, weakness, lack of endurance, or incoordination significantly limits functional ability with flare-ups or after repeated use over time. Conversely, as noted above, the Veteran stated specifically that he was unable to work if a flare-up occurred. Further, while the Veteran has consistently reported pain on previous VA examinations, the examiner checked the box for "no" evidence of pain, even as he noted the Veteran's "patellofemoral pain syndrome causes pain." Thus, due to such inconsistencies in the July 2021 VA opinion, the Board finds a remand is warranted to schedule the Veteran for an appropriate VA examination addressing the current nature and severity of his bilateral knee disabilities. The matters are REMANDED for the following action: The Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his service-connected bilateral knee disabilities. All indicated tests and studies should be undertaken. The record, including a complete copy of this remand, must be made available for review in connection with the examination. If possible, such examination should be conducted during a flare-up. (A) The examiner should identify the current nature and severity of all manifestations of the Veteran's bilateral knee disabilities. (B) The examiner should record the range of motion of the left and right knees observed on clinical evaluation in terms of degrees for flexion and extension. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination, results in any loss of range of motion. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case he or she should clearly explain why that is so. (C) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use. In this regard, the examiner should indicate whether, and to what extent, the Veteran's range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. (D) If the Veteran endorses experiencing flare-ups, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. (E) The examiner should also comment as to whether (and if so, to what extent, (i.e., slight, moderate, or severe)) the Veteran's bilateral knee disabilities result in recurrent subluxation or lateral instability. The examiner should also indicate whether there is dislocated or removed semilunar cartilage and, if so, the nature of the symptoms associated with such meniscus impairment. (F) The examiner should also comment upon the functional impairment resulting from the Veteran's bilateral knee disabilities. A rationale for any opinion offered should be provided. Tracie N. Wesner Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. M. Kelly, 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.