Citation Nr: 21020709 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 12-12 744 DATE: April 8, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for bursitis tendonitis, left knee, (left knee disability) is remanded. Entitlement to service connection for a right knee disability, to include as secondary to service-connected left knee disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1992 to May 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2015, May 2017, July 2018, and December 2019, the Board remanded this matter for further development. A December 2019 Board decision, in pertinent part, denied the Veteran’s claim of entitlement to service connection for a right knee disability. In September 2020, the United States Court of Appeals for Veterans Claims (Court) granted a joint motion for partial remand (JMPR), which remanded the service connection claim for additional development consistent with the JMPR. 1. Entitlement to a disability rating in excess of 10 percent for left knee disability is remanded. Unfortunately, yet another remand is required as there has not been substantial compliance with the directives of the previous Board remands. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand confers upon the claimant, as a matter of law, the right to compliance with the remand directives); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). In this regard, the Board has remanded this matter numerous times to provide the Veteran with an adequate VA examination which complied with Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). The December 2019 VA examination report specifically noted that the Veteran did not report flare-ups of the left knee. This finding, however, is contradicted by the record, as the Veteran has stated and reported that he experiences frequent flare-ups of the left knee. See July 2017 Knee and Lower Leg Conditions DBQ (noting flare-ups); January 2020 Knee and Lower Leg Conditions DBQ (noting increased pain with standing, walking, bending, kneeling, squatting); May 2020 Statement in Support (reflecting he reported experiencing flare-ups during the December 2019 VA examination). Therefore, an additional VA examination is required. 2. Entitlement to service connection for a right knee disability, to include as secondary to service-connected left knee disability, is remanded. The JMPR found that the December 2019 Board decision erred in relying on inadequate VA examinations and opinions. Specifically, the Board and previous VA opinions did not properly address the Veteran’s statements and reports regarding his right knee symptomatology. Additionally, the JMPR found that the Veteran’s secondary service connection claim had not been adequately addressed. In Ward v. Wilkie, 31 Vet. App. 233 (2019), the Court held that aggravation pursuant to 38 C.F.R. § 3.310 does not require a permanent worsening of the condition. Rather, the Court explained that “aggravation” is any incremental increase in disability attributable to the service-connected disability, i.e., any additional impairment of earning capacity that is above the degree of disability existing before the increase, regardless of its permanence. Id. The July 2019 VA opinion only opined that the Veteran’s service-connected left knee disability did not permanently worsen his right knee disability. Given the above, the Board remands this matter for an addendum opinion complying with the JMPR. Finally, as this matter is being remanded the Veteran’s updated VA treatment records should be obtained. The matters are REMANDED for the following action: 1. Obtain the Veteran’s updated VA treatment records, from July 2020, forward. 2. Schedule the Veteran for an appropriate VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to assess the severity of his service-connected left knee disorder. The entire claims file must be reviewed by the examiner in conjunction with the opinion. The examiner should confirm in the examination report that he or she has reviewed the folder in conjunction with the examination. The examination should be performed in accordance with the Disability Benefits Questionnaire (DBQ). The examiner is to specifically test the range of motion of the knees in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or conclude that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner must elicit as much information as possible from the Veteran regarding the severity, frequency, and duration of flare-ups, their effect on functioning, and precipitating and alleviating factors. As noted above, the Veteran has stated and reported that he experiences frequent flare-ups of the left knee. See July 2017 Knee and Lower Leg Conditions DBQ (noting flare-ups); January 2020 Knee and Lower Leg Conditions DBQ (noting increased pain with standing, walking, bending, kneeling, squatting); May 2020 Statement in Support (reflecting he reported experiencing flare-ups during the December 2019 VA examination). If the examination is not performed during a flare-up, the examiner must provide an estimate of additional loss of range of motion during a flare-up. If the examiner is unable to provide an estimate of additional loss of motion during a flare-up, the examiner must provide a specific explanation as to why the available information, including the Veteran’s own statements, is not sufficient to make such an estimate. The examiner must also provide a retrospective medical opinion, as best as can be ascertained from a review of the Veteran's self-reports, his VA treatment records, and the November 2009, July 2015, June 2017, July 2019, and January 2020 VA examination reports. The retrospective opinion must estimate any additional degrees of limited motion of the Veteran's left knee caused by functional loss during a flare-up for the time period from June 2009 to January 2020. All examination findings, along with a complete rationale for all opinions expressed, must be set forth in the examination report. 3. Arrange for the July 2019 VA examiner to provide an addendum medical opinion. If that VA examiner is no longer available, arrange for another appropriate medical professional to provide an opinion. The Veteran should not be scheduled for a VA examination (or telehealth interview, if an in-person examination is not feasible) unless deemed necessary by the VA medical opinion provider. Following a review of the claims files, the VA examiner should opine on the following: (a) Whether it is at least as likely as not (50 percent or greater probability) that any current right knee disability had its onset during service or is related to any incident of service? In providing this opinion, the examiner must consider and address the following: • The service treatment record showing that the Veteran was treated for a right knee abrasion and contusion in February 1995; • The April 1997 VA examination report, dated less than one year following the Veteran’s separation from service, showing that he reported right knee “popping and stiff feeling,” with a finding of right knee flexion from 0 to 106 degrees and diagnosis of “history of knee popping, stiff feeling and pain with normal physical examination”; and • The Veteran’s statements regarding his right knee symptomatology both during and continuing since his active duty service. * If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? (b) Whether it is at least as likely as not (50 percent or greater probability) that any current right knee disability was caused by, or is proximately due to, the Veteran’s left knee disability, to include any difficulty in ambulation or instability associated therewith? (c) Whether it is at least as likely as not (50 percent or greater probability) that any current right knee disability is aggravated by (i.e., undergoes any incremental increase in disability, regardless of its permanence) the Veteran’s left knee disability, to include by any difficulty in ambulation or instability associated therewith? • In reaching these opinions, the examiner must consider and address the Veteran’s reports that he had difficulty with ambulation and instability (See June 10, 2017, VA examination report and November 9, 2009, VA examination report). Of note, the term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Additional disability due to flareups of musculoskeletal disabilities, even if it cannot be quantified, or an incremental increase in pain might constitute an increase in disability, or aggravation. A complete rationale should be provided for all opinions stated. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. M. Stedman, 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.