Citation Nr: 21068521 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 09-47 709 DATE: November 10, 2021 REMANDED Entitlement to a disability rating in excess of 20 percent for left knee chondromalacia and Osgood Schlatter disease status post surgical patellar realignment from October 22, 2014 is remanded. Entitlement to a disability rating in excess of 20 percent for right knee chondromalacia and Osgood Schlatter disease, status post arthroscopic surgery with partial lateral meniscectomy from October 22, 2014 is remanded. REASONS FOR REMAND The Veteran had active duty service from October 1986 to December 2008. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) in February 2009. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in an October 2014 Board hearing. A copy of the hearing transcript has been reviewed and associated with the claims file. These matters were remanded by the Board in January 2015, December 2015, March 2017, November 2017, October 2019, and October 2020. 1. Entitlement to a disability rating in excess of 20 percent for left knee chondromalacia and Osgood Schlatter disease status post surgical patellar realignment from October 22, 2014 is remanded. 2. Entitlement to a disability rating in excess of 20 percent for right knee chondromalacia and Osgood Schlatter disease, status post arthroscopic surgery with partial lateral meniscectomy from October 22, 2014 is remanded. A remand by the Board confers on a veteran, as a matter of law, the right to compliance with the remand orders. Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall v. West, 11 Vet. App. 268, 271 (1998). This case was most recently remanded in October 2020, after the Board found that there had not been substantial compliance with the October 2019 remand directives. The Veteran testified during his October 2014 Board hearing that he experienced flare-ups of knee pain. He underwent a VA examination in March 2015, wherein the examiner indicated that he did not experience knee flare-ups. Accordingly, these issues were remanded by the Board in December 2015 for an addendum opinion addressing flare-ups. Additionally, in its March 2017 decision, the Board found that the March 2015 examination did not conform to the requirements of Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016), which requires that VA examiners conduct range of motion (ROM) testing for pain during both active and passive motion, and with both weight-bearing and non-weight-bearing. Most recently, the Board remanded these matters in October 2020 because the RO had still not obtained an adequate retrospective opinion addressing flare-ups, repeated use over time, passive and active ROM testing, and weight-bearing and non-weight-bearing. The evidence was also unclear as to whether the Veteran had ankylosis, so examiner was directed to clarify whether the Veteran has had knee ankylosis during the rating period on appeal. A new VA examination was conducted in March 2021, and a retrospective medical opinion was issued in May 2021. The examiner estimated that the missing ROM findings from the March 2015 VA examination were as follows: bilateral knee flexion to 50 degrees, bilateral knee extension to 10 degrees, right lateral flexion to 20 degrees, left lateral flexion to 15 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 15 degrees. The examiner also stated that the Veteran does not have ankylosis, as he walked into the examination room without difficulty and denied a history of ankylosis. Unfortunately, there has still not been substantial compliance with the Board's remand directives, and further clarification is needed. The examiner provided one retrospective ROM estimate for the March 2015 examination but did not indicate whether this estimate applied to the Veteran's knee ROM with or without weight-bearing, in active or passive motion, with repeated use over time, and/or during flare-ups. Separate estimates are needed for each of these tests, with opinions addressing each knee separately. Therefore, another remand is warranted to obtain substantial compliance with the Board's past remand directives. See Stegall, 11 Vet. App. at 271. The matters are REMANDED for the following action: Obtain an addendum medical opinion from the examiner who conducted the March 2021 examination or, if she is unavailable, then another similarly qualified examiner may respond instead. The entire claims file, including a copy of this remand, must be made available for review by the examiner, and such review should be noted in the examination report. The examiner is asked to respond to the following: (a.) At the time of the March 2015 VA examination, please estimate whether the Veteran had pain with active ROM testing of the knees. If so, please indicate the point at which he experienced pain, expressed in degrees. Please provide a separate opinion for each knee. (b.) At the time of the March 2015 VA examination, please estimate whether the Veteran had pain with passive ROM testing of the knees. If so, please indicate the point at which he experienced pain, expressed in degrees. Please provide a separate opinion for each knee. (c.) The March 2015 VA examination indicates that there was evidence of pain with weight-bearing in both knees. Please estimate the point at which he experienced pain, expressed in degrees. Please provide a separate opinion for each knee. (d.) At the time of the March 2015 VA examination, please estimate whether the Veteran had pain with non-weight-bearing. If so, please indicate the point at which he experienced pain, expressed in degrees. Please provide a separate opinion for each knee. (e.) At the time of the March 2015 VA examination, please provide an estimate as to whether the Veteran experienced additional functional loss after repeated use of the knees over time. If so, please estimate the degree of lost motion after repeated use over time. Please provide a separate opinion for each knee. (f.) The Veteran testified in his October 2014 hearing that he experienced flare-ups of knee pain. Please provide an estimate as to whether the flare-ups resulted in additional functional loss. If so, please estimate the degree of lost motion during such flare-ups. In providing an estimate, the examiner should consider information in the record and provided by the Veteran regarding the severity, frequency, duration, and/or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees cannot be given. If the claims file contains inadequate information to provide an estimate, a new examination may be necessary to elicit this information from the Veteran. If a new examination is conducted, the examiner must, in addition to noting the new range of motion findings, also estimate retroactive range of motion at the time of the prior examinations. The examiner may express their level of confidence in the estimates on a scale of 1-5, with 5 being most confident and 1 least confident. (Continued on the next page) The examiner must provide a comprehensive rationale for each proffered opinion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Pratt 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.