Citation Nr: 21024845 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 17-46 111 DATE: April 26, 2021 REMANDED Entitlement to a rating in excess of 10 percent for right knee chondromalacia is remanded. Entitlement to a rating in excess of 10 percent for left knee chondromalacia is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from January 1979 to January 1999. For her meritorious service, the Veteran was awarded (among other decorations) the Air Force Commendation Medal. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Board denied the Veteran’s claims for ratings in excess of 10 percent for her service-connected knee conditions. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In February 2020, the Court granted a Joint Motion for Partial Remand (JMPR) by the Veteran’s representative and the VA General Counsel. In June 2020 the Board remanded the claim for development consistent with the JMPR. In November 2020, the Board remanded the matter again for further development. 1. Entitlement to a rating in excess of 10 percent for right knee chondromalacia is remanded. 2. Entitlement to a rating in excess of 10 percent for left knee chondromalacia is remanded. Although further delay is regrettable, the Board finds another remand is required as there has not been substantial compliance with the November 2020 Board remand. A remand by the Board confers on the Veteran, as a matter of law, a right to substantial compliance with remand instructions, and imposes upon VA a concomitant duty to ensure substantial compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). If the Board proceeds with final disposition of an appeal, and the AOJ has not substantially complied with the remand orders, the Board itself errs in failing to ensure substantial compliance. Id. In the November 2020 remand order, the Board requested the Veteran undergo an additional VA knee examination and asked the examiner to report all signs and symptoms necessary for evaluating the Veteran’s knee disabilities under the rating criteria. Specifically, the Board asked the VA examiner to (i) specifically provide range of motion test results, in degrees, on active motion, passive motion, weight-bearing, and nonweight-bearing; (ii) indicate whether the Veteran experiences any limitation of motion attributable to pain and, if so, at what point during the range of motion the pain begins; (iii) offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the joints are used repeatedly over time at the time of the current examination and the June 2017 and June 2013 examinations; and (iv) describe whether pain significantly limits functional ability during flares and, if so, estimate the range of motion during flare-ups. In December 2020, the Veteran underwent a VA Knees examination. A review of the examination report reflects that the examiner tested the Veteran on active motion, passive motion, weight-bearing and nonweight-bearing. However, the examiner did not provide range of motion test results, in degrees, for passive motion and nonweight-bearing. In addition, the examiner did not opine as to whether pain could significantly limit functional ability during flare-ups or with repeated use over time at the time of the June 2017 and June 2013 VA examinations. Thus, the Board finds remand is required to obtain an additional VA examination that substantially complies with the above prior remand directives. Stegall, 11 Vet. App. 271 The matters are REMANDED for the following action: Schedule the Veteran for an examination of her knees. The examiner should report all signs and symptoms necessary for evaluation of the Veteran’s knee disabilities under the rating criteria. In particular, the examiner should address the following: (a) provide range of motion test results (in degrees) on active motion, passive motion, weight-bearing, and nonweight-bearing. (b) indicate whether the Veteran experiences any limitation of motion that is attributable to pain and, if so, at what point during range of motion testing. (c) offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time at the time of the current examination and the June 2017 and June 2013 examinations. If the examiner is unable to provide the requested opinion without resorting to speculation, he or she should clearly explain why that is so. (d) describe whether pain significantly limits functional ability during flare-ups and, if so, the examiner must estimate the range of motion during flares. IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE-UP, THE EXAMINER MUST OBTAIN INFORMATION REGARDING THE SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS OF FLARE-UPS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be considered. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. Additionally, if the examiner is unable to conduct any requested testing, concludes that the required testing is not necessary in this case, or is unable to provide any requested opinion, he or she should clearly explain why that is so. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Jiggetts 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.