Citation Nr: 21020986 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 13-03 164A DATE: April 8, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for the period prior to November 24, 2020 for subpatellar chondromalacia, right knee with scar, and in excess of 20 percent, thereafter, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1981 to February 1985 and December 1991 to July 1994. In May 2019, the Veteran testified during a travel Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. Procedural History In October 2019, the Board granted service connection for tinnitus and obstructive sleep apnea and remanded the Veteran’s claims for service connection for bilateral hearing loss and a disability of the lumbar spine. Additionally, the Board remanded the increased rating claim for subpatellar chondromalacia, right knee with scar for additional development. See Board Decision and Remand dated October 2, 2019. Thereafter, in a January 2021 rating decision, VA granted service connection for bilateral hearing loss and intervertebral disc syndrome (IVDS), which is considered a full grant of the benefits on appeal for the hearing loss and lumbar spine claims. As such, these issues are no longer before the Board for appellate consideration. A.B. v. Brown, 6 Vet. App. 35 (1993). Additionally, the January 2021 rating decision increased the rating for subpatellar chondromalacia, right knee with scar, to 20 percent, effective November 24, 2020, which is considered a partial grant of the benefits sought on appeal for that claim. As such, the increased rating claim remains on appeal. See A.B., supra. For the reasons set forth below, the Board finds that there has not been substantial compliance with its October 2019 remand directives regarding the increased rating claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2020). Examination Deficiencies Once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The November 2020 VA knee examination reflects that the Veteran reported increased pain and reduced mobility of his right knee during flare-ups. However, rather than indicating reduced ROM to reflect the loss of knee functional ability due to flare-ups, the examiner duplicated the initial ROM measurements. Similarly, the examiner duplicated the initial ROM measurements instead of indicating reduced ROM due to repeated use of the right knee joint over time. The reduced ROM estimates are essential to ensure the accurate evaluation of the Veteran’s right knee disability. See Sharp v. Shulkin, 29 Vet. App. 26, 35-36 (2017) (holding that a VA examiner must elicit relevant information as to the veteran’s flares or enquire as to the additional functional loss, if any, suffered during flares and then estimate the veteran’s functional loss due to flares based on all the evidence of record or explain why such could not be done). Additionally, in determining that the Veteran does not have degenerative or traumatic arthritis of the right knee joint, the November 2020 VA examiner relied on x-ray imagery from 2009. Considering the passage of more than a decade, and the Veteran’s contention that his right knee symptoms have grown worse, the Board finds that new imaging studies, such as x-rays, should be obtained and considered in assessing the nature and overall severity of the Veteran’s right knee subpatellar chondromalacia. See Barr, supra. Accordingly, on remand, VA must provide the Veteran a new knee examination. See Stegall, supra. The matter is REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Then, scheduled the Veteran for a VA knee examination by the same VA examiner who conducted the November 2020 VA knee and lower leg conditions examination, if available, as to the severity of the Veteran’s service-connected subpatellar chondromalacia, right knee with scar. If the same examiner is unavailable, another appropriately qualified VA clinician should conduct the examination. The claims file, including a copy of this Remand, must be made available to, and be reviewed by the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. After a thorough review of the record and examination of the Veteran, the examiner is asked to respond to the following. (a) Elicit from the Veteran all signs and symptoms of his service-connected subpatellar chondromalacia, right knee with scar, to include during repetitive use and/or during a flareup. **The examiner is requested to consider the Veteran’s assertion that what VA has identified as subpatellar chondromalacia also involves traumatic arthritis, as noted in the transcript of the May 13, 2019 Board of Veterans Appeals hearing (see VBMS “Hearing Transcript” 05/13/2019). Please obtain new imaging studies, such as x-rays, to make this determination. (b) Full range of motion (ROM) testing must be performed where possible. The joints involved should be tested, including for pain, in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in non weight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). (c) In assessing functional loss, flare-ups and increased functional loss on repetitive use must be considered. The examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of any additional degrees of limitation of motion, including impact on performing work or worklike tasks. **If the examiner determines that flare-ups and/or repeated use over time cause variable reductions in ROM of the affected joints, he or she must use information obtained from the Veteran to estimate variations in reduced ROM in terms of degrees. **All ROM measurements, including those reflecting additional limitation of motion due to flare-ups and repeated use over time, must be recorded in the appropriate sections provided in the examination form. **If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). A complete rationale should be provided for all opinions. 3. Thereafter, ensure that the examiner has substantially responded to the questions posed by the Board, and if not, take corrective action. Then, readjudicate the remanded claim. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Farrell 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.