Citation Nr: 21073788 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 16-27 189 DATE: December 10, 2021 REMANDED Entitlement to a disability rating in excess of 20 percent disabling for left knee arthritis is remanded. Entitlement to a disability rating in excess of 20 percent disabling for right knee arthritis is remanded. INTRODUCTION The Veteran served on active duty in the United States Navy from February 1946 to July 1946. In March 2019 he testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding is of record. In January 2021, the Court of Appeals for Veterans Claims (CAVC) issued a Joint Motion for Partial Remand (JMPR). When this case was previously before the Board in July 2021, the above-noted claims were remanded for additional development. The case has since been returned for further appellate review. REASONS FOR REMAND While additional delay is unfortunate, the Board finds further development is required before the Veteran's claims are decided. When this matter was most recently before the Board in July 2021, the Board instructed the RO to obtain the Veteran's outstanding outpatient VAMC and private treatment records. In particular, the RO was instructed to obtain the Veteran's records from the Kissimmee, Orlando, and Albany VAMCs from 2004 to present, as well as private treatment records from Orlando Health and Bassett Hospital. Following that remand, the Veteran provided a VA Form 21-4142 authorizing VA to obtain records from numerous providers. Since that time, the RO merely obtained treatment records from the Orlando VAMC for the period of April 2020 to July 2021, as well as private treatment records from Bassett Healthcare. There is no indication the RO attempted to obtain the other outstanding records. For these reasons the Board finds the record is not ripe for appellate review. Next, the Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). To be considered adequate, a musculoskeletal examination must include an assessment of the veteran's flare-ups, as well as range of motion measurements in weight bearing, non-weight bearing, and in passive motion. See Sharp v. Shulkin, 29 Vet. App. 26 (2017); see also Correia v. McDonald, 28 Vet. App. 158 (2016). The Veteran most recently underwent a VA examination to assess his left and right knee disabilities in September 2021. However, the examiner failed to provide weight-bearing, non weight-bearing or passive range of motion assessments. Additionally, the examiner found the Veteran did not experience flare-ups of knee pain; however, the Veteran expressly reported his knee flare-ups during his prior September 2019 VA examination. As such, a remand is again required as the September 2021 VA examiner failed to provide these critical evaluation assessments. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Based on the foregoing, the Board finds substantial compliance with the July 2021 Board instructions has not been achieved. Accordingly, this case is REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records, to include from the Kissimmee VAMC from 2004 to present, x-rays from the Orlando VAMC and treatment records from the Albany VAMC. 2. Ask the Veteran to complete an updated VA Form 21-4142, if necessary, to obtain all outstanding private treatment records from Orlando Health, CPRN, and Advanced Diagnostic Group. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 3. After records development is completed, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left and right knee arthritis. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight-bearing and nonweight-bearing range of motion assessments. In addition, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. Additionally, following the above-noted examination, the examiner is asked to provide concrete examples of functional impairments caused by the Veteran's service-connected left and right knee disabilities. The types of impairments the examiner should address include, but are not limited to, walking, sitting, lifting and standing limitations. If possible, the examiner should expound on how long the Veteran can sit or stand, how far he can walk, and how much he is able to lift. The examiner must discuss and consider the Veteran's competent lay statements. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Fraser, 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.