Citation Nr: 21006855 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 19-00 965 DATE: February 5, 2021 REMANDED Entitlement to a disability rating in excess of 20 percent for left knee degenerative joint disease, based on instability is remanded. Entitlement to a disability rating in excess of 20 percent for right knee degenerative joint disease, based on instability is remanded. Entitlement to a disability rating in excess of 10 percent for left knee degenerative joint disease, based on limitation of flexion and pain is remanded. Entitlement to a disability rating in excess of 10 percent for right knee degenerative joint disease, based on limitation of flexion and pain prior to August 14, 2019 and in excess of 20 percent thereafter is remanded. Entitlement to a compensable disability rating for left knee degenerative joint disease, based on limitation of extension prior to August 14, 2019 and in excess of 50 percent thereafter is remanded. Entitlement to a compensable disability rating for right knee degenerative joint disease, based on limitation of extension prior to August 14, 2019 and in excess of 50 percent thereafter is remanded. INTRODUCTION The Veteran served on active duty from January 1971 to November 1992. When this case was before the Board in March and December 2019, and June 2020, the above-noted issues were remanded for further development. The case has since been returned for additional appellate review. REASONS FOR REMAND Although further delay is untenable, the Board finds additional development is necessary prior to final adjudication of this matter. As previously noted, 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). In the course of the above-noted remands, the Board instructed the RO that 38 C.F.R. § 4.59 requires VA examinations to include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). Further, the RO was also advised that in order for a VA examination report to be considered adequate, a VA examiner must consider and discuss all procurable data relative to the Veteran’s bilateral knee flare-ups, to specifically include frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran underwent yet another VA examination in November 2020; however, the examination, like prior examinations, failed to provide these critical evaluative assessments. Based on these insufficiencies, the Board finds substantial compliance with the Board’s prior remand instructions has not been achieved, and as such, a new examination must again be obtained. Accordingly, these matters are REMANDED for the following actions: 1. Afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran’s service-connected bilateral 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 Veteran’s musculoskeletal 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. 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.