Citation Nr: 21005806 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 13-13 559 DATE: February 2, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for right knee patellofemoral syndrome and strain is remanded. Entitlement to an initial rating in excess of 10 percent for a left knee strain is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from June 1979 to January 1986 and from February 1996 to June 1999. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded these matters in January 2017 and July 2018 for additional development. Unfortunately, as explained below, the Board is not satisfied that there has been substantial compliance with its prior remand instructions; therefore, the appeal must be remanded once again. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to an initial rating in excess of 10 percent for right knee patellofemoral syndrome and strain is remanded. 2. Entitlement to an initial rating in excess of 10 percent for a left knee strain is remanded. The Board remanded this appeal in July 2018 to afford the Veteran a new VA examination to assess the current severity of his service-connected right and left knee disabilities. Specifically, the Board instructed that the Veteran undergo a VA knee examination that is compliant with the requirements of Sharp v. Shulkin, 29 Vet. App. 26 (2017). Pursuant to Sharp, VA examiners must estimate the functional loss that would occur during periods of flare-up of a musculoskeletal disability. In this regard, examiners must name the precipitating and alleviating factors for the flare-ups and estimate, per the veteran’s reports, the extent to which flare-ups affect functional impairment. In accordance with the Board’s remand directives, the RO attempted to schedule the Veteran for a VA knee examination. However, review of the claims file indicates that the examination request was cancelled when the RO was unable to contact the Veteran due to his telephone being disconnected. In an August 2019 letter, VA notified the Veteran that it was attempting to contact him to schedule the VA examination; however, he did not respond to this letter. Subsequent mail sent to the Veteran’s last known address of record was returned as undeliverable. Thereafter, the issues on appeal were returned to the Board for adjudication. In a November 2020 appellate brief, the Veteran’s representative provided two potential addresses for the Veteran and requested that the Board remand the Veteran’s appeal one more time to attempt to contact him and schedule an examination. Thereafter, in January 2020, VA confirmed the Veteran’s new address. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand directives, and the Board has a duty to ensure such compliance. Stegall, 11 Vet. App. at 271. In light of the foregoing developments, the Board finds that these matters should be remanded once again to afford the Veteran another opportunity to report for the necessary VA knee examination. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. At this time, the Veteran is reminded that, while VA has a duty to assist in the development of his claim, that duty is not limitless. In the normal course of events, it is the Veteran’s burden to keep VA apprised of his whereabouts. If he does not do so, there is no burden on VA to “turn up heaven and earth” to find him. Hyson v. Brown, 5 Vet. App. 262, 265 (1993). Furthermore, the Veteran is also informed that failure to report for a scheduled examination or failure to cooperate with any requested development may result in the denial of his claim. In relevant part, VA regulation provides that when entitlement to a benefit cannot be established without a current VA examination, and a claimant, without good cause, fails to report for such examination, action shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b). Accordingly, the matters are REMANDED for the following action: Schedule the Veteran for a VA examination with a VA physician (M.D.) of appropriate expertise to fully assess the current severity of his right and left knee disabilities. The claims file, to include a copy of this REMAND, must be made available to and reviewed by the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. A complete history of symptoms must be elicited from the Veteran. Thereafter, the examiner is asked to respond to the following: (a) Report the extent of the symptoms of the Veteran’s knee disabilities in accordance with VA rating criteria using the appropriate disability benefits questionnaire (DBQ). (b) Conduct range of motion testing of both knees (i.e., flexion and extension), specifically noting the motion in degrees on active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, s/he should clearly explain why that is so. (c) Render specific findings as to whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the right and left knee disabilities. If pain on motion is observed, the examiner should indicate the point at which pain begins. (d) State whether the examination is taking place during a period of flare-up. If not, the examiner must ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity, and/or extent of functional impairment he experiences during a flare-up of his symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and other evidence of record, the examiner must provide an opinion estimating any additional degrees of limitation of range of motion caused by functional loss during a flare-up. If the examiner is unable to do so, s/he must fully explain the basis of such an opinion. It should be noted that VA’s Clinicians Guide specifically advises examiners to procure information necessary to render an opinion regarding flare-ups from veterans. A full and complete explanatory rationale must be provided for any opinions offered. If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation, the examiner must indicate whether this inability is due to a lack of knowledge among the medical community or based on a lack of procurable information. The Board reminds the examiner that failure to comply with the directives outlined herein renders an examination report inadequate and will result in further remand of the Veteran’s claims. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Melissa Barbee, Associate 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.