Citation Nr: 21028535 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 15-04 751 DATE: May 11, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for chondromalacia of the right patella (right knee disability) is remanded. REASONS FOR REMAND The Veteran served on active duty for training from August 1984 to November 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in September 2018, when it was remanded for further development. The Veteran testified before a Veterans Law Judge (VLJ) in a May 2018 hearing. A transcript of that hearing is of record. In March 2021, the Veteran was sent a letter offering him the opportunity to testify at a new hearing before a VLJ who would participate in the decision. See 38 U.S.C. § 7107 (c) (2012); 38 C.F.R. § 20.707 (2019). See BVA letter, March 10, 2021. The Veteran was provided 30 days to respond, but failed to do so. Accordingly, the Board will consider the appeal based on the evidence of record. 38 U.S.C. § 7107 (c) (2012); 38 C.F.R. § 20.707 (2019). 1. Right Knee Disability The Veteran asserts that his right knee disability is worse than the current 10 percent rating, which was assigned as of February 11, 2011. In its September 2018 remand, the Board related that the examiner must expressly address the severity, frequency and duration of flare-ups, name the precipitating and alleviating factors and estimate "per the veteran," estimate of any additional functional impairment in terms of degrees of range of motion lost, and the nature and severity of any right knee instability, to include any subluxation. See Board remand, September 18, 2018. Unfortunately, there has not been compliance with the Board's remand directives. The Veteran underwent an examination for his right knee in October 2019. See Knee Disability Benefits Questionnaire (DBQ), October 19, 2019. Specifically, the examiner contradicted herself when, in one part, the examiner opined that his right knee disability did not impact his ability to perform any occupational task; while in another part the examiner stated that the Veteran's range of motion itself contributed to functional loss, which included physical activity limitations. The examiner also related that the pain and limited mobility affected the Veteran's ability to perform normal activities. The examiner then reported being unable to estimate the Veteran's range of motion during flare-ups, while simultaneously relating that the Veteran's complaints regarding loss of range of motion during flare-ups were medically consistent with what occurred during flares. As such, the examiner failed to address the elements necessary for proper adjudication of the Veteran's claim. Compliance with a Board remand directive is neither optional nor discretionary. See Stegall v. West, 11 Vet. App. 268 (1998). As such, another addendum opinion should be obtained on remand. The matter is REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, return the claims file to the October 2019 examiner for an addendum opinion, if available, to address the severity of the Veteran's service-connected chondromalacia of the right patella (right knee disability). If this examiner is unavailable, another qualified examiner should provide the addendum opinion. A complete and detailed rationale should be given for all opinions and conclusions expressed. The need for further in-person examination is left to the discretion of the examiner. The examiner must address whether there is additional functional impairment on repeated use or during flare-ups. Assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If this is not feasible to determine without resort to speculation, provide an explanation for why this is so. The examiner must address any additional impairment on use or in connection with flare-ups and 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. In so finding, the examiner should specifically discuss the Veteran's reports of knee flare-ups. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly explain why that is so. (Continued on the next page) The examiner should obtain a detailed clinical history from the Veteran and provide a thorough account and analysis of the manner in which the Veteran's right knee disability affects him in his everyday life, particularly the impact that it has on the Veteran's ability to secure and follow a substantially gainful occupation. A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. J. CONNOLLY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Lech, 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.