Citation Nr: 21077062 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 16-26 220 DATE: December 28, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for the service-connected right knee strain is remanded. Entitlement to an initial rating in excess of 10 percent for the service-connected instability and recurrent patellar dislocation of the right knee is remanded. REASONS FOR REMAND The Veteran served on active duty from October 2005 to November 2007. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ), and a transcript of that proceeding has been associated with the claims file. In September 2019, January 2021, and May 2021, the Board remanded this appeal for further development. In the most recent remand in May 2021, the Board remanded the Veteran's appeal to obtain outstanding private treatment records and to obtain an updated VA examination that included range of motion testing in active and passive range of motion, as well as on weight-bearing and nonweight-bearing, in compliance with Correia v. McDonald, 28 Vet. App. 158 (2016). The Board also requested that the VA examiner provide the full picture of the Veteran's disability under the appropriate diagnostic code which had been changed in February 2021, as the changes were particularly relevant for the Veteran's right knee instability and recurrent patellar dislocation disability. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessities remand for corrective action. Id. Substantial compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1990). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. The Veteran was accorded an examination in September 2021. The examiner diagnosed right knee strain and instability of the right knee and recorded the Veteran's reports of his right knee locking up, giving out, feeling weak, and feeling like something is going to tear. In responding to the Correia questions, the examiner indicated that passive range of motion testing was not possible due to the Veteran's reports of pain during active range of motion testing. The examiner did not address weight-bearing and nonweight-bearing or provide range of motion testing for these conditions, nor did the examiner indicate whether this testing was not possible. The Board finds that this amounts to only a cursory consideration of Correia and that such renders the examination inadequate for rating purposes. See Stegall, 11 Vet. App. at 271. Although the September 2021 examiner recorded the Veteran's reports of his right knee locking up, giving out, feeling weak, and feeling like something is going to tear as symptoms of his right knee instability, the examiner fails to provide all of the information required to assess the severity of this disability under the appropriate diagnostic code. The examiner noted the Veteran's instability symptoms, but then indicated that he did not have any recurrent subluxation or persistent instability and that there was no ligament tear, recurrent patellar instability, or recurrent patellar dislocation. Given the Veteran's instability complaints, the Board finds the examination report is internally inconsistent and fails to capture the full picture of his right knee instability and recurrent patellar dislocation disability. The examination is inadequate for rating purposes. The Board again notes that changes were made to the diagnostic codes for musculoskeletal disabilities, including the knee. See, e.g., Schedule for Rating Disabilities: Musculoskeletal System & Muscle Injuries, 85 Fed. Reg. 76453, 76463 (November 30, 2020). These changes became effective February 7, 2021. On remand, the nature and severity of the Veteran's right knee instability and recurrent patellar dislocation should be adequately assessed, and the examination obtained should be compliant with the requirements set out in Correia and the new appropriate diagnostic codes. Regarding the private records remand directive from the May 2021 decision, the Board acknowledges that multiple requests for information were sent to the Veteran to obtain authorization to obtain any private treatment records. He did not respond to these requests or submit an authorization to allow VA to obtain these records on his behalf. As the matter is being remanded to obtain an additional VA examination, a final attempt should be made to request authorizations from the Veteran to allow VA to obtain private treatment records on his behalf. The Board again points out to the Veteran that the duty to assist is not a one-way street and that he has an obligation to cooperate with VA in ensuring that duty is satisfied. Wood v. Derwinski, 1 Vet. App. 190 (1991); Hayes v. Brown, 5 Vet. App. 60, 68 (1993). VA's duty must be understood as a duty to assist a Veteran in developing his or her claim, rather than a duty on the part of VA to develop the entire claim with the Veteran performing only a passive role. Turk v. Peake, 21 Vet. App. 565, 568 (2008). The matter is, therefore, REMANDED for the following action: 1. Identify and obtain any outstanding private treatment records and associate them with the claims file. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 2. Then, schedule the Veteran for a VA examination to determine the current severity of his service-connected right knee strain and service-connected instability and recurrent patellar dislocation of the right knee. The entire claims file, including a copy of this remand, should be made available to, and reviewed by, the examiner. Any indicated tests and studies must be accomplished. All clinical findings found on examination to be associated with these disabilities must be reported in detail, to include, but not limited to, any limitation of motion of the Veteran's right knee and the symptomatology required for assessing his right knee instability and recurrent patellar dislocation under the appropriate diagnostic criteria. The examiner should test the range of motion and pain in the Veteran's right knee in active and passive motion and in weight-bearing and nonweight-bearing and should provide the range of motion measurements for such testing using a goniometer. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so. Also, the examiner should describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and after repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion must also be noted. If the Veteran describes flare-ups of the pain, the examiner must opine as to whether there would be additional limits on functional ability during flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically. Should the examiner state that he or she is unable to offer any such opinion without resorting to speculation based on the fact that the examination was not performed during a flare-up, the examiner is directed to do all that reasonably can be done to become informed before such a conclusion, to include ascertaining adequate informationi.e. frequency, duration, characteristics, severity, or functional lossregarding the Veteran's flare-ups by alternative means. The examiner is advised that the criteria of Diagnostic Code 5257 were amended, effective February 7, 2021. The examiner must provide a complete examination of the Veteran's right knee in accordance with both the old and new regulations. With regard to the new criteria: (a.) Does the Veteran present with recurrent subluxation or lateral instability, as follows: a. Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation; or b. One of the following: i. Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or ii. Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation; or iii. Sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. (b.) Does the Veteran present with patellar instability, as follows: a. A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker; or b. A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker; or c. A diagnosed condition involving the patellofemoral complex with recurrent instability (with or without a history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. In addressing the Veteran's right knee instability, the examiner should consider the Veteran's lay statements about the instability symptoms he has experienced in his right knee, regardless of findings on instability objective testing on examination. The examiner is also advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. A clear explanation for all opinions would be helpful, as well as a rationale for all opinions rendered, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to respond to requests for authorizations or to submit records on his own behalf or to appear for an examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran is also advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Goreham 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.