Citation Nr: 21022045 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-26 485 DATE: April 14, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for a left knee strain is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1979 to September 1989. The Veteran appealed an April 2015 rating decision by the Agency of Original Jurisdiction (AOJ). The Board of Veterans’ Appeals (Board) finds that further evidentiary development is necessary and remands the case to ensure compliance with the Board’s prior remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The October 2018 Board decision remanded the issue for a new examination that complied with joint testing for both active and passive motion. See Correia v. McDonald, 28 Vet. App. 158 (2016). A VA examination was conducted in September 2019. However, the September 2019 VA examination report does not adequately address flare-ups. This was noted in the July 2020 deferred rating decision. The July 2020 VA opinion assumed the range of motion (ROM) measurements during flare-ups “is always the same” and focused on the actual limitation in ROM versus voluntary limitation in ROM where “a person may be reluctant to fully move a joint through its ROM.” Overall, the July 2020 VA opinion noted there is “most likely no change in voluntary ROM” during flare-ups. The July 2020 VA opinion continued to speculate ROM measurements during flare-ups without properly eliciting information from the Veteran. Additionally, the July 2020 VA opinion alludes to possible decrease in “voluntary” limitation in ROM, but does not pinpoint at what point this may be. Ultimately, the Board finds a new examination is warranted that adequately addresses flare-ups. Additionally, the Veteran’s January 2015 statement noted he was currently being treated by Dr. S.N. and also Dr. M.I., who retired from practice. The record includes limited medical records and attempts to obtain these relevant private treatment records have not been made. Therefore, attempts to obtain medical treatment records by Dr. S.N. and Dr. M.I. should be made on remand as well. The matter is REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his left knee strain that are not already of record, to include Dr. S.N. and Dr. M.I. treatment records. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. Thereafter, schedule the Veteran for an examination of the current severity of his left knee strain. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing (if applicable). The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner should identify any symptoms and functional impairments due to the Veteran’s condition and discuss the effect of the Veteran’s condition on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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). 3. After the above development has been completed to the extent possible, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board, if otherwise in order. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Zheng, 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.