Citation Nr: 21069120 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 13-01 131 DATE: November 17, 2021 REMANDED Entitlement to a rating in excess of 10 percent for epicondylitis of the left elbow is remanded. Entitlement to a rating in excess of 10 percent for degenerative joint disease (DJD) and tendonitis of the right knee is remanded. Entitlement to a rating in excess of 10 percent for DJD and tendonitis of the left knee is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1979 to August 1999. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in August 2016. A transcript of the hearing is associated with the electronic claims file. The Board issued three prior remands in September 2017, February 2020, and February 2021 on the Veteran's knee claims. The Board issued a prior remand on the elbow claim in September 2017 and a decision in February 2020. However, following an appeal to the United States Court for Appeals for Veterans Claims (Court), in November 2020 a Joint Motion for Partial Remand (Joint Motion) was entered, vacating portions of the Board's February 2020 decision. The Board issued another remand in compliance with the Joint Motion for the elbow claim in April 2021. 1. Entitlement to a rating in excess of 10 percent for epicondylitis of the left elbow is remanded. 2. Entitlement to a rating in excess of 10 percent for DJD and tendonitis of the right knee is remanded. 3. Entitlement to a rating in excess of 10 percent for DJD and tendonitis of the left knee is remanded. The Board regrets further delay in deciding these claims, however, the prior remand instructions have not been followed. Specifically, in the prior remands the Board instructed the RO to obtain new VA examinations for the Veteran's left elbow and bilateral knees and in reporting the results of range of motion testing "the examiner should identify any objective evidence of pain, and the degree at which pain begins." As pain was exhibited on range of motion testing in the most recent VA examinations, the degree at which pain began should have been indicated. It was not, therefore remand is again warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding remand by the Board confers on the claimant the right to compliance with the remand requests). The Board notes that these claims will continue to be remanded until the degree at which the Veteran's pain begins in range of motion testing is indicated for all three conditions. The matters are REMANDED for the following action: 1. Update the electronic file with any new VA treatment records and private treatment records. 2. Schedule a new examination to evaluate the severity of the Veteran's epicondylitis of the left elbow. The claims folder must be made available to and be reviewed by the examiner. The examiner should note in the examination report that the claims folder has been reviewed. All indicated studies, including x-rays should be performed. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins (e.g., 0 to 130 degrees with pain at 115 degrees) in accordance with the 2020 Joint Motion for Remand and the Board's April 2021 remand instructions. The examiner should record the results of range of motion testing for pain on active motion, passive motion, weight-bearing, and non-weight-bearing in light of Correia. 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. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups assessed in terms of the degree of additional range of motion loss. In regard to flare-ups (pursuant to Sharp v. Shulkin), if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. [The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran.] 3. Schedule the Veteran for another examination to evaluate the severity of his DJD and tendonitis of the bilateral knees. The claims folder must be made available to, and be reviewed by, the examiner. The examiner should make a note in his or her report that the Veteran's entire claims file, including this remand which provides a full summary of the Veteran's examinations and treatment records, has been reviewed. All indicated studies, including x-rays, should be performed. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, AND at what degree of motion he demonstrates such objective evidence (e.g., 0 to 130 degrees with pain at 115 degrees) to comply with DeLuca and the Board's February 2021 remand instructions. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups assessed in terms of the degree of additional range of motion loss. If the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. The examiner should also specifically consider and address the Veteran's October 2018 correspondence regarding his bilateral knees and meniscal conditions, as well as the Veteran's October 2017 MRI results and March 2014 treatment records discussing an arthroscopy procedure, and his February 2018 QTC questionnaire answers regarding his bilateral knees. In August 2021 the prior examiner in an addendum opinion opined that the Veteran's meniscus condition is a progression/worsening of his current service-connected knee conditions. Any additional symptoms caused by such should be listed on remand. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Ruiz, 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.