Citation Nr: 21077049
Decision Date: 12/28/21	Archive Date: 12/28/21

DOCKET NO. 18-22 920A
DATE: December 28, 2021

REMANDED

Entitlement to a disability rating in excess of 10 percent for chronic low back strain prior to March 15, 2021, and in excess of 20 percent thereafter is remanded. 

Entitlement to a disability rating in excess of 10 percent for retropatellar pain syndrome, left knee, with mild degenerative joint disease is remanded. 

INTRODUCTION

The Veteran served on active duty from November 1991 to November 1995. 

In December 2020, the Veteran attended a hearing before the undersigned Veterans Law Judge.  A transcript of that proceeding is of record.  

When this case was previously before the Board in January 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 of the above-noted claims is unfortunate, the Board finds further development is required before the Veteran's claims are decided. 

In the course of the January 2021 remand, the Board fully explained that 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 were necessary to properly evaluate his lumbar spine and left knee disabilities.  See Sharp v. Shulkin, 29 Vet. App. 26 (2017); see also Correia v. McDonald, 28 Vet. App. 158 (2016).  The Veteran recently underwent VA knee and back examinations; however, the examiner, failed to provide weight-bearing, non weight-bearing, and passive range of motion assessments with respect to the Veteran's left knee disability, and weight-bearing and non weight-bearing range of motion assessments with respect to the Veteran's lumbar spine disability.  As such, a remand is again required.  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). 

Accordingly, these matters are REMANDED for the following actions: 

1.  Afford the Veteran a VA examination by an examiner with sufficient expertise, who has not previously examined the Veteran, to fully assess the severity of the Veteran's service-connected lumbar spine and left knee disabilities.  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 any required testing is not necessary, he or she should be directed to clearly explain why that is so.

 

 

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.