Citation Nr: 21070373 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 19-18 670A DATE: November 23, 2021 REMANDED Entitlement to an increased evaluation for osteoarthritis of the left knee in excess of 10 percent is remanded. Entitlement to an increased evaluation for osteoarthritis of the right knee in excess of 10 percent is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1974 to June 1994. This appeal is before the Board of Veterans' Appeals (Board) from an October 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. Addressing the relevant procedural history, the Board issued a decision denying the increased rating claims for the knee disabilities in April of 2020 while granting a separate claim for service-connected compensation for a lumbosacral spine disability. The Veteran appealed the unfavorable rulings to the United States Court of Appeals for Veterans Claims (Court). In December 2020, both parties filed a Joint Motion for Remand (JMR), in which it was stated that the Board erred by relying on inadequate examination reports when it denied increased ratings for the knees. In response, the Court granted the JMR and concurrently vacated the Board's April 2020 denial of increased ratings for the Veteran's service-connected knee disabilities before remanding these issues back to the Board in December of 2020. The Board subsequently remanded this case for additional development in May of 2021, to specifically include affording the Veteran the opportunity to attend a new VA examination and obtaining an addendum opinion. The claim has now been returned to the Board for adjudication. Unfortunately, an additional remand is warranted. Entitlement to an increased evaluation for osteoarthritis of the left knee in excess of 10 percent and for osteoarthritis of the right knee in excess of 10 percent is remanded. While a VA examination and opinion was obtained on remand, this unfortunately does not complete the Board's remand directives. More specifically, a VA examiner reported in a June 2021 VA opinion that she was "[u]nable to provide a definitive medical opinion without mere speculation regarding the conflicting information in the July 2020 VA knee examination. This would be better addressed by the original provider of the July 2020 examination." Unfortunately, this statement negates the provided June 2021 VA opinion as the examiner concurrently self-reported that this opinion is "speculation". See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding veterans are entitled to compliance with Board remand instructions). Further the accompanying examination did not include, as instructed by the Board, a determination of "the effective range of motion in the Veteran's knees" and "the results of range of motion tests in a written report which complies with 38 C.F.R. § 4.59 by recording separate sets of range of motion test results for both active and passive motion, and in weight bearing, and nonweight-bearing." In response to a September 2021 addendum opinion request that noted this failure to adhere to the Board instructions, the VA examiner stated that "[t]he Veteran's claim file was reviewed. ROM was completed in active and passive forms during examination, and only non-weight bearing measurements were assessed and submitted due to safety concerns. On the day of examination, the Veteran reported instability and was in use of a walker, weight bearing measurements were not obtained." However, the examiner previously stated in June of 2021 that there was a "[l]ack of evidence in c-file and evidence from today's examination to support recurrent subluxation or knee instability." The Board therefore finds the opinions offered by this examiner to be internally inconsistent, and as was essentially asserted by the examiner herself, an additional opinion should be obtained from another examiner. Given the foregoing, the Board cannot make a fully-informed decision in regard to appropriate ratings for the Veteran's respective knee conditions until the Veteran is given an additional opportunity to attend an examination and an addendum VA opinion is obtained. See Stegall, 11 Vet. App. 268, 271. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. Following the completion of step one, schedule the Veteran for a VA examination to determine the current nature and severity of her service-connected (a) left knee and (b) right knee conditions with an appropriate examiner who should be a different provider than the one who provided the June 2021 and September 2021 VA opinions. In addition to all findings identified on the appropriate examination form, the examiner should determine the effective range of motion in the Veteran's knees and present the results of range of motion tests in a written report which complies with 38 C.F.R. §4.59 by recording separate sets of range of motion test results for both active and passive motion, and in weight bearing, and nonweight-bearing. The examiner's report should describe objective evidence of painful motion, if any, during each test. It is not sufficient merely to indicate whether or not pain was present during the required range of motion tests. If any of these findings are not possible, please provide an explanation. In order to comply with Sharp v. Shulkin, 29 Vet. App.26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description, if any, of reduced range of motion during flares or repetitive use. After the examination and records review are complete, the examiner must provide a medical opinion clarifying conflicting information in the July 2020 and June and September 2021 VA knees examination reports. The entire claims file, to include a complete copy of this REMAND, must be made available and the examination reports should include discussion of the Veteran's documented medical history, lay assertions, and any conflicting evidence of record as well as a confirmation that the record was reviewed. In addition, the examiner is asked to reconcile, to the extent possible: the fact that on part 3(e) of the examination questionnaire ("Additional factors contributing to disability"), the examiner noted "Instability of station" affecting both knees. But part 6(d) indicates that there was no joint instability in either knee during tests of anterior, posterior, medial, and lateral instability. Is it possible that the Veteran has experienced knee instability at certain times while this appeal has been pending (August 30, 2017 to the present) but that instability was not present at the time of the April 2020 examination? If the Veteran does have instability, the examiner should indicate whether she experiences patellar instability or recurrent subluxation or instability. The examiner should also clarify whether the use of a wheelchair and walker, also noted in the last few VA examination reports, is related to her knee disability and, if so, whether or not the use of a walker or wheelchair was prescribed by a physician. 3. Thereafter, readjudicate the claims on appeal. If the benefits sought remain denied, issue the Veteran and her representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning these matters to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Smith, 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.