Citation Nr: 21010460 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-30 777 DATE: February 24, 2021 REMANDED Entitlement to an increased rating in excess of 10 percent for right knee degenerative joint disease, status post meniscus repair is remanded. Entitlement to an increased rating in excess of 10 percent for left knee degenerative joint disease, status post anterior cruciate ligament (ACL) repair is remanded. REASONS FOR REMAND The Veteran served on active duty for training (ACTDUTRA) from June 2009 to November 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston Salem, North Carolina. The matter was most recently before the Board in August 2018. The Board remanded the issues for further development, to include scheduling the Veteran for a VA examination for his knee disabilities. The matter has returned to the Board for adjudication. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Veteran asserts that his service-connected knee disabilities warrant a higher evaluation than the currently assigned 10 percent evaluations. As directed by the August 2018 Board decision, the Veteran was afforded a new VA examination for his knee disabilities in October 2019. The Board notes that the United States Court of Appeals for Veterans Claims (Court) issued a decision which mandated new requirements for VA examinations of musculoskeletal disabilities (including disabilities of the knee as in this case) in order to satisfy judicial review in increased rating claims. See Correia v. McDonald, 28 Vet. App. 158 (2016). In Correia, the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weightbearing and non-weightbearing. Id.; see also 38 C.F.R. § 4.59. A review of the record evidence shows that the Veteran's most recent VA examination for his right and left knee conditions did not comply with Correia. For example, there is no indication in the October 2019 VA examination whether the range of motion obtained at the examinations are active or passive. Furthermore, the October 2019 VA examiner noted that there was evidence of pain in weightbearing and non-weightbearing range of motion with the knees but did not report the range of motion at which pain began and did not delineate the range of motion upon active motion, passive motion, weightbearing, and non-weightbearing. The August 2018 Board remand instructions specifically requested that the examiner include the Veteran’s range of motion in active motive, passive motion, weightbearing, and non-weightbearing, and if possible, with range of motion measurements of the opposite undamaged joint. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, in accordance with Stegall, remand for full compliance with the Board's prior remand is warranted.   The matters are REMANDED for the following action: 1. Obtain VA treatment records from April 2020 to present. All reasonable attempts should be made to obtain any identified records. 2. Schedule the Veteran for a VA examination to assess the severity of the service-connected left knee and right knee conditions. The record, including a copy of this remand, must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner must provide all examination findings, along with a complete rationale for the conclusions reached. Specifically, the Veteran’s right and left knees should be tested for pain in both weight-bearing and non-weight-bearing positions, and on both active and passive motion. If this cannot be performed, the examiner should explain why. The examiner should record the range of motion of the joints observed on clinical evaluation in terms of degrees in weightbearing, non-weightbearing, passive and active motion. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, as well as whether such pain on movement results in any loss of range of motion. If feasible, the VA examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If the Veteran reports flare-ups, the examiner should ask him to report or demonstrate his range of motion during the flare-ups. The VA examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups, and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. The VA examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If the VA examiner is unable to report the degree of additional range of motion loss during repeated use or flare-up, the VA examiner must explain why it is not feasible to render such an opinion. In other words, the VA examiner should opine as to any resultant loss in range of motion that would occur during repeated use or flare-ups or explain why it is not feasible to render such an opinion. If the Veteran endorses experiencing them, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during repeated use or a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. All opinions or findings provided must include an explanation for the bases for the opinion. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain why an opinion cannot be provided without resort to speculation. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Kim, 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.