Citation Nr: 21067274 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 16-42 764 DATE: November 3, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for arthritis of the right knee is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from May 1977 to August 1995. This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In a February 2019 decision, the Board previously denied, in pertinent part, the issue of an initial rating in excess of 10 percent for arthritis of the right knee. The Veteran appealed this decision to the U.S. Court of Appeals for Veterans Claims (Court). In an August 2020 Memorandum Decision, the Court vacated and remanded this issue for additional consideration. In June 2021, the Board remanded this matter for further development. As the Agency of Original Jurisdiction (AOJ) did not substantially comply with the remand, another remand regrettably is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a disability rating in excess of 10 percent for arthritis of the right knee is remanded. The Veteran seeks a higher disability rating in excess of 10 percent for arthritis of the right knee. In an August 2020 Memorandum Decision, the Court held that the February 2019 Board decision provided inadequate reasons and bases when concluding that VA had satisfied the duty to assist in obtaining adequate VA examinations. Specifically, the Court held that the February 2019 Board decision did not address whether the April 2018 VA knee examination complied with pertinent legal authorities. See also Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017). In August 2021, the Veteran was afforded a VA examination for her right knee disability. The examiner failed to provide approximate estimates of the Veteran's range of motion during flare-ups and during repeated use over time testing as is required under Sharp. Thus, a remand is required to obtain an addendum opinion, prior to adjudication. The matter is REMANDED for the following action: 1. If possible, return the claims file to the August 2021 VA examiner to obtain an addendum opinion. If the examiner is not available, obtain an addendum opinion from an appropriate examiner to determine the severity of the Veteran's service-connected right knee arthritis during flare-ups and repeated use over time. The claims file and a copy of this remand must be made available for review. No examination of the Veteran is necessary unless the examiner deems otherwise. The examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups and repeated use over time based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The opinion provided must be based on the totality of the evidence, to include the Veteran's lay statements as to additional functional loss or limitation of motion experienced during flare-ups of pain and repeated use over time, in terms of active and passive range of motion, in weightbearing and non-weight bearing. If this cannot be determined, the examiner should explain why in a fully informed rationale as to the inability to provide the requested opinion. 2. The AOJ must review this opinion to ensure it is adequate and complies with the Board's specific remand directives herein. If deficient in any manner, corrective action must be taken at once. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that AOJ compliance with Board remand directives is not discretionary or optional). (Continued on the next page) 3. Then, the Veteran's claim must be readjudicated. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and her representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Quist 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.