Citation Nr: 21025069 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 18-06 857 DATE: April 27, 2021 REMANDED The claim of entitlement to an evaluation in excess of 10 percent for a left knee lateral collateral ligament strain status post-anterior cruciate ligament repair (hereinafter a left knee disability) is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Army from December 1973 to December 1993. This matter is before the Board of Veterans’ Appeals (Board) from a January 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied an evaluation in excess of 10 percent for a left knee disability. The Board issued a decision in May 2019 that denied the Veteran’s claim for an evaluation in excess of 10 percent for his left knee disability. The Veteran appealed the May 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). While the matter was pending before the Court, the Veteran and VA’s General Counsel filed a Joint Motion for Partial Remand (JMPR) in January 2020. In February 2020, the Court granted the parties’ Motion, vacated the portions of the May 2019 Board decision that denied entitlement to an increased evaluation in excess of 10 percent for a left knee disability and remanded the matter for actions consistent with the JMPR. The January 2020 JMPR also noted that the Veteran abandoned his claim for an increased rating for his umbilical hernia, and the May 2019 Board decision had remanded the Veteran’s claim for service connection of a right knee condition. These issues are not before the Board and therefore are not addressed herein. In May 2020, the Board remanded the issue of an increased rating for the left knee to comply with the January 2020 JMPR. Although further delay is regrettable, the Board finds that another remand of the claim of entitlement to an increased rating for a left knee disability is required, as the Agency of Original Jurisdiction (AOJ) has not substantially complied with the Board’s prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In May 2020, the Board remanded this appeal to comply with the January 2020 JMPR, to afford the Veteran another VA examination for his left knee and determine the current range of motion of the Veteran’s left knee disability, and also indicate at which points in range of motion that the Veteran experienced pain. The examiner was also to consider the Veteran’s statements as to his left scar being painful and his arthritis. The examiner was requested to elicit from the Veteran a complete history of any flare ups of his left knee disability and, in rendering their opinion, should derive his or her estimate from relevant sources within the claims file. The Veteran was thereafter afforded a VA examination for his knee condition in December 2020. However, the examiner failed to note at which point pain limited range of motion, although he did note that pain limited both the Veteran’s flexion and extension. As the directives found in the May 2020 remand order were not completed, the Board’s review is frustrated and the matter must be remanded for additional development. Stegall, 11 Vet. App. at 271. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature, severity, and extent of his current pathology associated with his service-connected left knee disability. The record, to include a copy of the claims file, should be made available to the examiner, who is to accomplish the following: (a) Regardless of whether the particular form being used in preparation of the examination report contains specific sections for recording the results of the following tests, to ensure compliance with the Court's holding in Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016), these tests should be accomplished: Range of motion testing in active motion, passive motion, weight-bearing, and non-weight-bearing for both the right and left knee. The examiner must indicate at what point during the range of motion testing the Veteran experiences any limitation of motion that is specifically attributable to pain. If the examiner is unable to conduct such testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (b) To the extent possible, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain in the left knee and/or any of the other symptoms during flare-ups and/or with repeated use. To the extent possible, that should be expressed in terms of additional motion loss. (c) Regardless of whether the particular form being used in preparation of the examination report contains specific sections for recording the results of the following tests, to ensure compliance with the Court's holding in Sharp v. Shulkin, 29 Vet. App. 34, the examiner should make certain that: Any additional impairment on use or in connection with flare-ups should be described in terms of the degree of additional range of motion loss. The examiner should specifically describe the severity, frequency, and duration of flare-ups; name the precipitating and alleviating factors; and estimate, per the veteran, to what extent, if any, such flare-ups affect functional impairment. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. Review the examination report to ensure that it is in compliance with this remand, and if deficient, implement corrective actions. Theophilos V. Casey Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Nadia Kamal, 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.