Citation Nr: 21072811 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 17-31 569 DATE: December 6, 2021 REMANDED Entitlement to a rating in excess of 10 percent for left knee disability is remanded. REASONS FOR REMAND The Veteran had active service from February 1982 to February 2002. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2021 this case was before the Board and the issue was remanded to the agency of original jurisdiction (AOJ) for additional development. Unfortunately, as discussed in greater detail below, the development conducted did not adequately comply with the directives of the September 2021 remand. Compliance with remand directives is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Left Knee In its September 2021 remand, Board directed the AOJ to obtain an additional VA examination. The Board requested that the examiner estimate the Veteran's functional loss in terms of degrees of limited motion experienced during flare-ups and after repetitive use over time. If the examiner was unable to provide this estimate, they were instructed to provide an explanation as to why not. A VA examination was conducted in September 2021. The examiner indicated that the Veteran's current left knee condition included retropatellar pain syndrome along with degenerative joint disease. The Veteran reported that he experienced flare-ups, which included increased pain, that lasted anywhere from 2 to 4 hours. The Veteran indicated it was difficult to bend down during flare-ups and that his pain could only be alleviated with rest. The Veteran also reported having trouble running, walking long distances, and going up and down stairs. When discussing functional impairment during flare-ups and with repetitive use over time, however, the examiner did not provide a measurement or an estimate of the Veteran's range of motion. As the examination was not being conducted during a flare-up or after repeated use over time, an estimate would have been all that was possible. However, no estimates were provided and no explanation for this lack of information was provided by the examiner as requested in the September 2021 Board remand. The Board notes that the United States Court of Appeals for Veterans Claims (Court) held that in order for an examination to comply with 38 C.F.R. § 4.40, the examiner must express an opinion regarding functional impairment and the examiner's determination in that regard should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Further, the Court in Sharp noted that an examiner may not decline to provide an opinion on the basis of speculation unless the examiner has considered all procurable and assembled data and offered a basis for that conclusion, and it must be apparent that the inability to provide an opinion without speculation reflects the limitation of knowledge in the medical community at large, as opposed to a limitation of the individual. Accordingly, due to the deficiencies in the September 2021 VA examination report, remand is necessary for an addendum VA medical opinion. The matters are REMANDED for the following action: 1. Return the Veteran's file to the examiner who conducted the September 2021 examination. If this examiner is not available, provide the file to another appropriate examiner. The necessity of an in-person examination is left to the discretion of the examiner. The examiner shall render an addendum opinion, including rationale, providing: An estimation of any functional loss in terms of additional degrees of limited motion experienced during flare-ups and after repetitive use over time based on the Veteran's description as to the severity, frequency, and duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time. If the examiner is unable to provide an estimate, he or she should explain why they cannot. 2. After the above development, and any other development deemed necessary, readjudicate the claim. Sonja A. Mishalanie Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Andrew Ledman II 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.