Citation Nr: 21012248 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 14-32 939 DATE: March 3, 2021 REMANDED Entitlement to a rating in excess of 10 percent for left knee degenerative joint disease is remanded. Entitlement to a rating in excess of 10 percent for right knee degenerative joint disease is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from January 1969 to January 1971. He also served on active duty in the United States Army from August 1981 to October 1984. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2017 and September 2019, the Board remanded these matters for further development. Although the Board regrets the additional delay, another remand is required to comply with the prior remand directives. 1. Entitlement to a rating in excess of 10 percent for left knee degenerative joint disease is remanded. 2. Entitlement to a rating in excess of 10 percent for right knee degenerative joint disease is remanded. In September 2019, the Board remanded the matter for further development, to include a new VA examination to determine the severity and manifestations of the Veteran’s service-connected bilateral knee disabilities. The Board directed the examiner to comment on the functional limitations caused by any flare-ups that the Veteran reports. The Board further stated that the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during flare-ups. In December 2019, the Veteran underwent a VA knee examination and reported that he experienced flare-ups of the knees. See Dec. 2019 C&P Examination, p. 2. The Veteran stated that if he sits for too long, they stiffen up and are hard to bend. Id. He also stated that cold and rain makes the condition worse. Id. However, the examiner failed to provide an estimation of limitation of motion that the Veteran experiences during flare-ups. Additionally, the examiner simply stated that the existing clinical evidence in the Veteran’s records do not support any additional limitations during flare-ups. Id. at 13. The examiner did not cite to any specific records in support of the opinion. The Board finds the examiner’s statements regarding additional limitations due to flare-ups to be conclusory, as it is unclear which records the examiner relied on to make the opinion. Additionally, the examiner failed to comply with the September 2019 remand directives by failing to estimate the range of motion lost during the Veteran’s flare-ups. A Board remand confers upon claimants, 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. Stegall v. West, 11 Vet. App. 268, 271. Accordingly, as the examiner’s statement regarding flare-ups was conclusory and the examiner also failed to comply with the September 2019 remand instructions, the Board finds the December 2019 examination to be inadequate for adjudication purposes. Accordingly, the issues must be remanded in order to obtain an adequate examination and opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). 3. Entitlement to a TDIU is remanded. The Veteran’s claim of entitlement to a TDIU is inextricably intertwined with the issues addressed above and will be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left and right knee disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). J.N. MOATS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Watkins, 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.