Citation Nr: 21027783 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 12-20 974A DATE: May 6, 2021 REMANDED An increased rating greater than 10 percent for a left knee disability, effective November 21, 2008 is remanded. An increased rating greater than 10 percent for a right knee disability, effective November 21, 2008 is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1988 to June 1989 and from May 1994 to May 2000. This matter is on appeal from an original claim for increased rating for the left and right knee disabilities filed on November 21, 2008, which was denied in a September 2010 rating decision issued by the Regional Office (RO). The Veteran filed a substantive appeal (VA Form 9) in August 2012 requesting a Board hearing. A supplemental statement of the case was issued in March 2013. A Board hearing was scheduled for April 5, 2016 but the Veteran failed to appear. Accordingly, the Board finds the Veteran has waived his right to a hearing. In February 2017, the Board remanded the Veteran's claims for further development. In February 2019, the Board denied increased ratings for left and right knee disabilities. The Veteran appealed the February 2019 Board decision to the U.S. Court of Appeals for Veterans Claims (CAVC). An April 2020 Order by CAVC adopted a Joint Motion for Partial Remand (JMPR) filed by the parties. The parties agreed that February 2019 Board decision erred when it relied VA examinations conducted in June 2009, January 2013, and September 2017 because all three examinations were inadequate. In November 2020, the Board remanded the Veteran's claim in accordance with the CAVC order but did not order new VA examinations of the Veteran's left and right knee disabilities. 1. An increased rating greater than 10 percent for a left knee disability, effective November 21, 2008 is remanded. 2. An increased rating greater than 10 percent for a right knee disability, effective November 21, 2008 is remanded. Despite the additional and regrettable delay, the Board finds another remand is required based on the December 2020 VA medical opinions. The examiner indicated that they were unable to provide a rationale for their conclusions because they did not conduct the prior VA examinations. Additionally, the Board notes that as the prior VA examinations were deemed inadequate because they failed to conduct the needed testing of the Veteran's knee disabilities, a new VA examination is required along with any medical opinion because the examiner was unable to render an opinion with adequate rationale because they did not conduct the prior examination. Thus, the Board must unavoidably remand the Veteran's claims once again. The matters are REMANDED for the following action: 1. Please note that, by law, ALL remanded claims must be processed expeditiously. The Board recognizes that the complex and intertwined nature of the medical questions involved requires significant work on the part of the medical examiner and the RO and regrets the need to remand the case to the RO. However, the Board is unable to adjudicate the claims until the requested information is provided. Therefore, the Board must ask the VA examiners and the RO to ensure compliance with the following directives (that is, full and thoroughly explained answers to each of the questions) to avoid additional delays in adjudication. 2. Arrange for an orthopedic examination of the Veteran to assess the current severity of his service-connected left and right knee disabilities. The examiner must review the entire record in conjunction with the examination and note such review was conducted. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. All indicated tests or studies should be completed. Range of motion measurements should be included for active and passive motion in both weight-bearing and non-weight-bearing circumstances, including for the opposite undamaged joint, if applicable. IF PAIN IS NOTED, THE POINT IN THE RANGE OF MOTION AT WHICH PAIN STARTS SHOULD BE CLEARLY NOTED. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups IN TERMS OF THE DEGREE OF ADDITIONAL RANGE OF MOTION LOSS, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale based on the fact that the Veteran is not having a flare-up at the time of the examination will not be deemed adequate. The examiner is reminded that the Veteran is competent to provide information about observable symptoms and events. The examiner should assume, for the purposes of the opinions, that the Veteran's reports are both accurate and credible. A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.) VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Williams, 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.