Citation Nr: 21027218 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 14-09 951 DATE: May 5, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for lumbosacral strain prior to September 4, 2019, and in excess of 20 percent thereafter, to include on an extraschedular basis, is remanded. Entitlement to a disability rating in excess of 10 percent for right knee retropatellar pain syndrome (RPS), to include on an extraschedular basis, is remanded. Entitlement to a rating in excess of 10 percent for left knee RPS, to include on an extraschedular basis, is remanded. REASONS FOR REMAND The Veteran had active service from November 1992 to November 1995. These matters are before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded the Veteran's claims in February 2016, October 2018, and October 2020. 1. Entitlement to a disability rating in excess of 10 percent for lumbosacral strain prior to September 4, 2019, and in excess of 20 percent thereafter, to include on an extraschedular basis. 2. Entitlement to a disability rating in excess of 10 percent for right knee RPS, to include on an extraschedular basis. 3. Entitlement to a rating in excess of 10 percent for left knee RPS to include on an extraschedular basis. Issues 1 3: The Veteran, via his representative, contends that higher ratings are warranted, to include on extraschedular basis. See Appellate Brief (April 2021). The Board finds that the matter requires remand as there has not been substantial compliance with the October 2020 Board remand directives. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). In its October 2020 remand, the Board found that the April 2016 VA examinations and the September 2019 VA examinations did not comply with Correia testing requirements and remanded the Veteran's claims for new VA examinations. See BVA Decision (October 2020). However, while VA examinations were conducted in November 2020 regarding the Veteran's lumbosacral strain and bilateral knee RPS, the examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016), and Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017), despite the Board's October 2020 remand instructions. 38 U.S.C. § 5103A; Stegall, supra. First, the November 2020 examiner, who conducted lumbosacral strain and bilateral knee RPS examinations, did answer questions as to pain with weightbearing and non-weightbearing and passive range of motion (ROM), but did not provide adequate explanations or rationale for her answers and she did not provide at which point in degrees this pain begins. As the examiner provided deficient explanations and failed to give adequate findings in regard to the Correia standards, on remand new examinations should include Correia compliant testing along with thorough explanations of the examiner's findings. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The new examinations should include specific findings regarding the Veteran's ROM, for his lumbosacral strain and bilateral knee RPS, in active motion, passive motion, weightbearing, and non-weightbearing. Second, the Board finds that the November 2020 VA examinations are incongruous with previous VA examinations pursuant to Sharp requirements, including those conducted in April 2016 and September 2019 with regard to the Veteran experiencing flare-ups of his lumbosacral strain and bilateral knee RPS. Specifically, both the April 2016 VA examinations and the September 2019 VA examinations show that the Veteran experiences flare-ups. At the April 2016 VA bilateral knee examination, the Veteran was shown to flare-ups about twice a week lasting for an hour up to the next day with sharp pain at 10 out of 10. See C&P Exam (April 2016). Regarding, the Veteran's back, his flare-ups were noted to occur once a day with sharp stabbing pain at 10 out of 10 and lasting from a few minutes to a few hours. Id. At the September 2019 VA bilateral knee examination, the Veteran was shown to have daily flare-ups of bilateral knee pain lasting for several hours, and being precipitated by prolonged walking or standing and alleviated by resting. See C&P Exam (September 2019). At the September 2019 VA spine examination, the Veteran was shown to experience flare-ups three to four times per month lasting several hours; precipitated by walking, standing or sitting for prolonged periods; and alleviated by nothing. Id. Given the incongruous findings contained in the November 2020 VA examination reports, a new examination is necessary in order to resolve the inconsistency. As a result of the examiner's finding of absence of flare-ups of both the Veteran's lumbosacral strain and bilateral knee RPS, the examination report does not include an estimate of range of motion during flare-ups or relevant information on the frequency and duration of flare-ups. Thus, remand is necessary for another examination compliant with Sharp. Therefore, given the above, remand for new VA examinations to adequately address the Correia and Sharp standards are required. See Barr, 21 Vet. App. at 311. Moreover, retrospective supplemental findings should be requested from the examiner on remand. See Chotta v. Peake, 22 Vet. App. 80, 85-86 (2008) (discussing situations when it may be necessary to obtain a "retrospective" medical opinion to determine the date of onset or severity of a condition in years past); see also Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the time period being rated). Lastly, the Board notes that the Veteran's record does not contain VA treatment records between December 2017 and October 2020. Any VA treatment records are within VA's constructive possession and are considered potentially relevant to the issue on appeal. See Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016); 38 C.F.R. § 3.159(c). Such should be obtained on remand. In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records through the period from December 2017 to October 2020, and from October 2020 to Present. 2. Thereafter, schedule the Veteran for a VA examination by an appropriate clinician to determine the current severity of his service-connected (1) lumbosacral strain and (2) bilateral knee RPS. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. As to the below, if it is not possible to provide a specific measurement 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). (a.) Test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. Note: The examiner should determine the effective ROM for the disability and present the results of ROM tests in a written report which complies with 38 C.F.R. § 4.59 by recording separate sets of the ROM test results for both active and passive motion, and in weightbearing and non-weightbearing. The examiner's report should describe objective evidence of painful motion, if any, during each test. IT IS NOT SUFFICIENT MERELY TO INDICATE WHETHER OR NOT PAIN WAS PRESENT DURING ONE OF THE REQUIRED ROM TESTS. If any of these findings are not possible, please provide an explanation. (b.) Attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. Attempt to estimate range of motion during flare-ups. If it cannot be based on observation, then base on the other evidence of record and the Veteran's statements. Clearly indicate if there is no change in range of motion during flare-ups. Reconcile findings with the those of the April 2016 and September 2019 VA examination reports showing findings of flare-ups. Note: If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced ROM during flares or repetitive use. Retrospective Findings: Following a review of the record, the clinician should provide retrospective findings for the below identified past examinations. (c.) Provide an addendum retrospective opinion to supplement the April 2016 VA Examination Reports that: i. Estimates the amount in degrees of ROM lost due to pain in both weightbearing and non-weight bearing positions, and on both active and passive motion based on the evidence of record and the Veteran's statements. ii. Estimates the amount in degrees of ROM due to flare-ups experienced by the Veteran based on the evidence of record and the Veteran's statements. (d.) Provide an addendum retrospective opinion to supplement the September 2019 VA Examination Reports that: i. Estimates the amount in degrees of ROM lost due to pain in both weightbearing and non-weight bearing positions, and on both active and passive motion based on the evidence of record and the Veteran's statements. M. C. WILSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. M. Pesin 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.