Citation Nr: 21011046 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 10-12 312 DATE: February 26, 2021 REMANDED A rating in excess of 10 percent for service-connected right knee arthritis is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1975 to August 1976. This matter is on appeal from a July 2009 rating decision which increased the rating for his service-connected right knee arthritis, but only to 10 percent. In November 2014, the Board of Veterans’ Appeals (Board) remanded for additional development. A rating in excess of 10 percent then was denied by the Board in a May 2016 decision. The Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Remand in January 2017 vacating that decision, however. This matter subsequently was returned to the Board, and an April 2017 remand for more additional development ensued. Next, the Board denied a rating in excess of 10 percent for the Veteran’s service-connected right knee arthritis in a December 2017 decision. The Court granted a Joint Motion for Partial Remand vacating the aforementioned portion of the decision in February 2019. This matter once again was returned to the Board, and a June 2019 decision was issued denying a rating in excess of 10 percent. The Court granted a Joint Motion for Remand vacating that decision in June 2020. Upon return of this matter, the Board remanded for additional development in September 2020. Right Knee Arthritis The Board’s September 2020 remand directed that the Veteran undergo a new VA medical examination for his service-connected right knee arthritis. When it took place in December 2020, he was not experiencing a flare-up and had not just used his knee repetitively over a period of time. Yet he reported flare-ups of intense pain and buckling triggered by increased activity. They were characterized as frequent and severe by the examiner following assessment. Pain and fatigue further were found to significantly limit the Veteran’s functional ability with flare-ups as well as with repeated use over a period of time. In fact, it was noted that his “symptoms would be much worse on activity over a period of time.” The examiner was unable to describe the aforementioned in terms of the degree of additional range of motion loss, however. No explanation was provided for this inability, despite the remand calling for a detailed explanation. While strict compliance with a remand is not required, there must be at least substantial compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). This standard has not been met. Adhering to the remand is particularly important here. It indeed was crafted to comport with the Joint Motions granted by the Court, the most recent of which cited recent caselaw applicable when a VA medical examination is not conducted during a flare-up or following repetitive use over a period of time. Specifically, functional ability in these situations must be estimated based on all procurable information or it must be explained why such an estimate cannot be provided. Sharp v. Shulkin, 29 Vet. App. 26, 33-35 (2017). A new examination must be scheduled so this can occur. Attempts first must be made to obtain any outstanding relevant treatment records, so this examination is as informed as possible. This matter is REMANDED for the following action: 1. Schedule the Veteran for VA medical examination to determine the current severity of his service-connected right knee arthritis. The electronic claims file must be accessible to and reviewed by the examiner, who is advised that using the appropriate Disability Benefits Questionnaire (DBQ) would be especially helpful. The examiner specifically shall interview the Veteran in depth regarding his symptoms and their impact on his functional ability, to include during flare-ups and following repetitive use over a period of time. Range of motion in both knees, taking into account pain, must be assessed on both active and passive motion as well as in weight-bearing and nonweight-bearing. If assessment is not conducted during a flare-up or following repetitive use over a period of time, an estimate of the Veteran’s functional ability then must be provided using all procurable information (Veteran’s reports and statements, treatment records, previous examinations). This estimate, if at all possible, should be expressed in terms of the degree of additional range of motion loss. If an estimate cannot be provided, the examiner must explain in detail why. 2. Then readjudicate this matter. If it is not granted in full, follow established procedure for returning it to the Board. Thomas H. O’Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Becker 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.