Citation Nr: 21071094 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 16-56 559 DATE: November 29, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent disabling prior to September 22, 2016, and in excess of 20 percent disabling thereafter for service-connected lumbar spine disability, is remanded. Entitlement to an initial compensable rating for service-connected right hip bursitis with limitation of flexion is remanded. Entitlement to an initial compensable rating for service-connected left hip bursitis with limitation of flexion is remanded. Entitlement to a rating in excess of 10 percent disabling prior to September 22, 2016, for service-connected right knee strain with instability/subluxation and in excess of 10 percent disabling from September 22, 2016, for service-connected right knee strain with limitation of flexion, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 2010 to July 2013. In November 2018, the Board remanded the claims on appeal for further development and adjudication. The Board finds that there was substantial compliance with its November 2018 remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). In a June 2020 rating decision, the RO increased the Veteran's rating for service-connected right knee strain with instability/subluxation to 10 percent disabling effective July 28, 2013 to September 22, 2016. However, as the grant did not represent a total grant of benefits sought on appeal, the claim for increase remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). Entitlement to initial ratings in excess of 10 percent disabling prior to September 22, 2016, and in excess of 20 percent disabling thereafter for service-connected lumbar spine disability, for compensable ratings for service-connected right and left hip bursitis with limitation of flexion, and for ratings in excess of 10 percent disabling prior to September 22, 2016, for service-connected right knee strain with instability/subluxation and in excess of 10 percent disabling from September 22, 2016, for service-connected right knee strain with limitation of flexion, are remanded. Relevant to the Veteran's claims for increased ratings for his service-connected lumbar spine disability, left and right hip bursitis with limitation of flexion, and right knee strain with instability/subluxation and limitation of flexion, the Court has held that, where the record does not adequately reveal the current state of a claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the last examination. Allday v. Brown, 7 Vet. App. 517, 526 (1995). The Board finds that the Veteran's claims for increased ratings for his service-connected lumbar spine disability, left and right hip bursitis with limitation of flexion, and right knee strain with instability/subluxation and limitation of flexion must be remanded in order to afford him contemporaneous VA examinations in order to assess the current nature and severity of his service-connected disabilities. In this regard, the record reflects that the Veteran was most recently afforded VA Knee and Lower Leg, Back, and Hip examinations in December 2019. The Board notes that the Veteran has noted increased severity in his symptoms and alleges that higher ratings are warranted. In light of the allegations of worsening symptoms, the degenerative nature of the Veteran's conditions, and the amount of time which has passed since the Veteran's prior examinations, the Board finds that a remand is required in order to afford the Veteran contemporaneous VA examinations so as to determine his current level of impairment with regard to his service-connected lumbar spine disability, left and right hip bursitis with limitation of flexion, and right knee strain with instability/subluxation and limitation of flexion. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Due to the amount of time which will pass on remand, updated treatment records should be obtained. The matters are REMANDED for the following action: 1. Obtain updated treatment records. 2. The Veteran should be afforded VA examinations to determine the current nature and severity of his service-connected lumbar spine, bilateral hip, and right knee disabilities. The claims file, to include a copy of this remand, must be made available and be reviewed by the examiner(s), and the examination report(s) should note that review. Any indicated evaluations, studies, and tests should be conducted. In addition to all findings identified on the appropriate examination form, the examiner(s) should determine the effective range of motion in the Veteran's lumbar spine, bilateral hips, and right knee and present the results of range of motion tests in written reports which comply with 38 C.F.R. § 4.59 by recording separate sets of the range of motion test results for both active and passive motion, and in weight bearing and nonweight-bearing. The examiners' report(s) 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 ONE OF THE REQUIRED RANGE OF MOTION TESTS. If possible, the VA examiner(s) should also provide retrospective medical opinions addressing the ranges of motion, additional functional impairment, and severity of the Veteran's service-connected lumbar spine, bilateral hip, and right knee disabilities right knee disability since 2013. 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(s) must estimate range of motion during flares or repetitive use. If the examination(s) do not take place during a flare or repetitive testing cannot be performed, the examiner(s) 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(s) should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. Again, if possible, the VA examiner(s) should provide a retrospective medical opinion addressing the functional impairment of the Veteran's lumbar spine, bilateral hip, and right knee disabilities since 2013. If any of these findings are not possible, please provide an explanation. The examiner(s) should provide a rationale for any opinion expressed and reconcile that opinion with all pertinent evidence of record, including all relevant VA medical records and any lay evidence suggesting that the Veteran's service-connected lumbar spine, bilateral hip, and right knee disabilities are worse than shown on some prior examinations. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Unger, 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.