Citation Nr: 21068122 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 10-45 159 DATE: November 9, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for left knee limitation of flexion is remanded. Entitlement to an initial rating in excess of 10 percent for residuals of a left lateral meniscectomy is remanded. Entitlement to an initial rating in excess of 10 percent for right knee limitation of flexion is remanded. Entitlement to an initial rating in excess of 10 percent for residuals of a right lateral meniscectomy is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Navy from January 1996 to November 1998. These matters are before the Board of Veterans' Appeals (Board) on appeal from May 2010 and April 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2013, the Veteran appeared at a hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. In October 2017, the Board sent the Veteran a letter asking him if he wished to have another Board hearing. The Veteran did not respond, so, as indicated in the letter, his non-response was interpreted as an election to not participate in another Board hearing. The Board has previously remanded these matters in July 2014, November 2016, January 2018, November 2019, and September 2020 1. Entitlement to an initial rating in excess of 10 percent for left knee limitation of flexion is remanded. 2. Entitlement to an initial rating in excess of 10 percent for residuals of a left lateral meniscectomy is remanded. 3. Entitlement to an initial rating in excess of 10 percent for right knee limitation of flexion is remanded. 4. Entitlement to an initial rating in excess of 10 percent for residuals of a right lateral meniscectomy is remanded. The Board finds that the claims must be remanded for additional development as there has not been substantial compliance with the mandates of the September 2020 remand order. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that 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). In September 2020, the Board remanded the claims for a VA examination where the Board specifically requested the VA examiner, to the extent possible, provide findings for limitation of motion during flare-ups retrospectively for the VA examinations in May 2010, September 2012, August 2014, December 2016, and July 2018. The Veteran was afforded a VA examination in April 2021 where the VA examiner opined that there would be 20 degrees limitation during flare-ups from baseline. However, the examiner did not provide an estimate for both extension and flexion. Furthermore, the examiner did not address each prior examination, as requested in the September 2020 Board remand. The Veteran was afforded an additional VA examination in June 2021 with a different VA examiner than the examiner that performed the April 2021 VA examination. In July 2021, the June 2021 VA examiner provided estimated range of motion for both extension and flexion for the September 2012, August 2014, December 2016, and July 2018 VA examinations. However, the examiner did not provide an opinion regarding the May 2010 VA examination as she stated she was unable to locate the May 2010 examination report in the file. The examination report has been in the file as of May 3, 2010. Thus, as the April 2021 and June 2021 VA examination reports and the July 2021 opinion do not substantially comply with the September 2020 remand order, the claims must be remanded for an additional opinion regarding the limitation of motion during flare-ups for the May 2010 VA examination. See Stegall, 11 Vet. App. at 271. The matters are REMANDED for the following actions: 1. Obtain and associate with the Veteran's electronic record any outstanding VA treatment records. Contact the Veteran and afford him the opportunity to identify or submit any pertinent evidence in support of his claims, to include records of any private treatment. Based on his response, attempt to procure copies of all records which have not been obtained from identified treatment sources. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. After completing the development requested in item 1, obtain an addendum opinion from the June 2021 VA examiner, if available, or another appropriate qualified clinician if the June 2021 VA examiner is not available. If the examiner determines that an in-person examination is needed in order to answer the questions posed, then such should be scheduled. After reviewing the claims file, the examiner should address the following: To the extent possible, the examiner should provide findings for limitation of motion (expressed in degrees) of the Veteran's knees during flare-ups for the May 2010 VA examination. It is noted that the May 2010 VA examination report was added to the claims file on May 3, 2010. (Continued on the next page) If the examiner is unable to provide Veteran's range of motion during flare-ups for the May 2010 VA examination without resorting to mere speculation, the examiner must provide a complete explanation for why such cannot be provided. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. M. Mills Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Breitbach, 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.