Citation Nr: 21070554 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 20-00 348 DATE: November 24, 2021 REMANDED Entitlement to a rating in excess of 10 percent for a right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from July 2005 to June 2007. This matter comes before the Board of Veterans' Appeals (Board) from an August 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. The Board remanded this matter for further development in February 2021 to obtain a new examination addressing the severity of the Veteran's service-connected right knee disability. A new examination was obtained in April 2021, after which the RO denied entitlement to a higher rating in an April 2021 Supplemental Statement of the Case (SSOC). The matter then returned to the Board and in May 2021, the Board found the April 2021 examination inadequate and remanded the case for a new examination. A new examination and addendum opinions were obtained in July and August 2021, respectively. The RO again denied entitlement to a rating in excess of 10 percent for a right knee disability in an August 2021 SSOC. In an October 2021 Informal Hearing Presentation, the Veteran's representative asserts that the July 2021 examination is inadequate and requests that the case be remanded "for a better attempt at development and evaluation . . . if an increased rating cannot be afforded." Although the Board regrets causing further delay by remanding this case again, the Board agrees with the Veteran's representative that remand is necessary for further development in order to substantially comply with the Board's prior remands. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand confers upon the claimant, as a matter of law, the right to compliance with the remand directives). In this regard, the July 2021 examination continues to fail to account for the Veteran's reports of severity and to reconcile disparate findings. The May 2021 Board remand noted several discrepancies between the April 2021 examiner's measurements and the Veteran's reports of functional limitations. The discrepancies were stark enough to warrant remand for an examiner to reconcile the measurements' failure to reflect the severity of the condition as credibly reported by the Veteran. Specifically, the May 2021 remand noted that the Veteran reported additional functional loss from flare-ups and repeated use over time, but the examiner provided a negative response as to whether the evidence indicates functional loss due to these factors. In addition, the examiner failed to reconcile the Veteran's credible reports of instability and pain that caused loss of motion with findings to the contrary. Unfortunately, the July 2021 examination continued to reveal the same discrepancies and the examiner failed to reconcile them. The Veteran's reports of functional impairment, which the Board deems to be credible, are more severe than what the objective range-of-motion measurements represent, and adequate develop of the record requires these discrepancies to be reconciled. Accordingly, remand is necessary to obtain an addendum opinion from the July 2021 examiner. As the deficiencies pertain to interpretation and explanation of the examination findings, rather than the examination itself, a new examination is not needed unless the examiner determines otherwise. Updated VA and private treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding pertinent private treatment records. 3. Obtain an addendum opinion from the same examiner who conducted the July 2021 examination if available, and if not available, a different examiner who is preferably an orthopedic specialist and different than the April 2021, October 2019, November 2018, and June 2016 examiners. A new examination is not needed unless the examiner indicates otherwise. If the examiner determines that furnishing a fully-informed opinion addressing all the requested Remand directives is not possible without a concurrent examination, the examiner must so state and the Veteran must be scheduled for a new examination. The entire claims file must be made available to and reviewed by the examiner, to include a copy of this remand and the May and February 2021 Board remands, and the December 2020 Board hearing transcript. The examiner should pay particular attention to the Veteran's reports of his right knee condition and functional impairment, and the examiner must indicate that such review was completed. After completing this review, the examiner must address the following items: (a.) The July 2021 examination indicates that there was evidence of pain on weight-bearing, nonweight-bearing, active motion, and passive motion (Section 3(A)), but that such pain did not cause functional loss. The Veteran, however, credibly reported at the same examination that his right knee is in constant pain at 5-6/10 and that when going up and down stairs the pain increases to 8-9/10. Please explain the July 2021 finding that pain does not cause functional loss in light of the Veteran's credible reports that pain increases upon going up and down stairs. Upon reconsideration, if you opine that pain does result in functional loss, please estimate the loss in terms of range of motion. (b.) Please reconcile the July 2021 examination finding that repetitive use does not cause additional loss of function (Section 3(B)) with the Veteran's report at the April 2021 examination that prolonged walking causes increased pain and loss of function. In other words, the Veteran has credibly reported that repetitive use (e.g., prolonged walking) results in loss of function, but the examination report found otherwise. Upon reconsideration, if you opine that repetitive use does result in functional loss, please estimate the loss in terms of range of motion. (c.) The July 2021 examination indicates that pain and lack of endurance due to repeated use over time significantly limit functional ability (Section 3(C)) but this section provides the same degrees of flexion (90) as that provided in the initial measurement section (Section 3(A)). Please reconcile this inconsistency. Upon reconsideration, if you opine that repeated use over time significantly limits functional ability, please estimate this impairment in terms of range of motion. (d.) The July 2021 examination indicates that pain and lack of endurance due to flare-ups (Section 3(D)) significantly limits functional ability, but only by an estimated 5 degrees of flexion. However, Section 2(B) addressing flare-ups indicates that the Veteran reported a flare-up of his knee caused the knee to "lock up," he had to be seen in the emergency department, flare-ups cause "limitation in movement," a precipitating factor is walking upstairs, the doctors recommended crutches, pain was 8-10/10, and functional impairment included "Unable to walk up and down stairs, had to use crutches for 2 weeks." In other words, the description of flare-ups in Section 2(B) paints a disability picture far worse than the 5 degrees reflected in Section 3(D). Please reconcile how the description of flare-ups in Section 2(B) results in only 5 degrees of loss of motion, or please reconsider this finding and provide a new estimate of loss of motion due to flare-ups. (e.) The Remarks section of the July 2021 examination indicates that the Veteran has right knee instability with walking, but Section VI for Joint Stability indicates no instability. Please reconcile this inconsistency. Upon reconsideration, please describe the Veteran's instability with walking in terms of slight, moderate, or severe. (f.) The examiner is advised that the Board has found the Veteran's lay reports describing his right knee condition and associated functional impairment to be credible. Therefore, the examiner must accept all the Veteran's lay reports of his right knee condition to be true. Failure to accept his reports as true will render the opinion inadequate and necessitate another remand. (g.) Please review the Veteran's credible reports of functional impairment and pain of the right knee, accept his reports as true, and indicate whether that level of impairment and pain more closely approximate limited flexion of over 60 degrees, 60 degrees, 45 degrees, 30 degrees, or 15 degrees. In other words, regardless of objective measurements, are characteristics of the right knee condition such as constant pain of 5-6/10, flare-ups of 8-10/10, needing regular use of knee braces, needing crutches, having difficulty walking up and down stairs, and having increased pain upon prolonged use, more accurately captured by a greater limitation of flexion, such as limitation to 60 degrees, 45 degrees, 30 degrees, or 15 degrees? If the examiner indicates that this question cannot be answered without resort to speculation, such an answer must be supported by a rationale. Please provide a robust rationale for all opinions. If unable to opine without resorting to speculation, the examiner must provide a basis for reaching this conclusion. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. deBruyn, 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.