Citation Nr: 21029085 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 07-33 953 DATE: May 12, 2021 REMANDED Entitlement to an initial disability rating in excess of 10 percent for service-connected right knee degenerative joint disease (DJD) is remanded. Introduction The Veteran served honorably on active duty in the United States Marine Corps during the Peacetime and Gulf War Era, from September 1977 to February 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The recent procedural history of this matter includes, inter alia, a previous denial by Board decision dated November 2018, and a subsequent appeal to the United States Court of Appeals for Veterans Claims (Court) which, in July 2019, entered its Order vacating and remanding the November 2018 Board decision pursuant to a Joint Motion for Partial Remand (JMPR). Thereafter, the Board remanded the matter pursuant to the JMPR and Court's Order in December 2019. When this matter came before the Board most recently in December 2020, it was again remanded for additional development, specifically, a VA examination. The Board observes the additional development has been conducted, and the matter returns to the Board for further appellate review. While further delay is regrettable, for the reasons set forth below, the Board finds there has not been substantial compliance with the prior remand directives such that remand is again required. See Stegall v. West, 11 Vet. App. 268, 271 (1998). REASONS FOR REMAND Entitlement to an initial disability rating in excess of 10 percent for service-connected right knee DJD is remanded. The Veteran contends he is entitled to an initial disability rating in excess of 10 percent for his service-connected right knee DJD. The June 2006 Rating Decision on appeal granted service-connection for right knee DJD with an initial rating of 10 percent effective March 1, 2006, based upon "traumatic arthritis with limited and painful motion." As an initial matter, as noted in the Board's December 2020 decision and pursuant to the JMPR and Court's Order dated July 2019, the Veteran is not pursuing an appeal with respect to the denial of a separate compensable rating for subluxation or instability, or the grant of a separate rating for residuals of semilunar cartilage removal. As such, the issue as characterized above is the sole issue before the Board. The Board's December 2020 remand directed that another VA examination be afforded the Veteran, which was conducted in March 2021. For the reasons set forth below, the Board finds the VA examiner's reports inadequate for rating purposes and not in substantial compliance with the prior remand directives. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall, 11 Vet. App. at 271. First, the prior remand directed the VA examiner to "address the March 2020 VA examination report indicating that, 'it is possible that [the Veteran] might experience up to an additional five degree decrease in flexion'" due to pain related to certain activities, such as prolonged standing or sitting. Upon review, the Board observes the VA examiner's reports are devoid of discussion regarding the March 2020 VA examination. Moreover, other than referencing the Veteran's 2004 arthroscopic surgery and January 2016 x-rays, the VA examiner does not address any of the medical treatment or examination evidence of record and the evidence comments section is empty. Next, the VA examiner was instructed to, inter alia, describe whether pain, weakness, fatigue, and/or incoordination significantly limits functional ability during flare-ups or repetitive use and, if so, estimate ROM during flare-ups and/or repetitive use. According to the VA examiner, the Veteran denied experiencing flare-ups. However, although the Veteran was reportedly not examined immediately after repetitive use over time, the VA examiner opined that pain does significantly limit the Veteran's functional ability with repeated use over time and described the functional loss in terms of ROM, specifically, flexion of 0 to 105 degrees and extension of 105 to 0 degrees (initial ROM was flexion of 0 to 110 degrees and extension of 110 to 0 degrees). Unfortunately, the VA examiner did not articulate her rationale for determining the Veteran's ROM with repeated use over time, such as, for example, by the Veteran's descriptions or demonstrations as indicated in the Board's prior remand. The Board observes the VA examiner's opinion regarding the Veteran's ROM with repeated use over time, as with the March 2020 VA examiner's opinion, appears to arbitrarily assign a five-degree decrease from initial ROM measurements. Finally, in one part of the VA examiner's report she noted the Veteran's functional impact included an inability "to stand for a prolonged period of time" and his symptoms included, inter alia, "swelling of right knee;" yet, in another part, without explanation, she noted no interference with standing and no swelling. Based upon the foregoing, and as noted above, the Board finds remand is again required so as to afford the Veteran an adequate VA examination for rating purposes, and which is in substantial compliance with all remand directives. Accordingly, this matter is REMANDED for the following actions: 1. Schedule the Veteran for a VA orthopedic examination with a physician who has not previously offered an opinion in this matter and possessing the necessary expertise to fully assess and provide an opinion regarding the nature and severity of the Veteran's service-connected right knee DJD for the entire period on appeal. The examiner must obtain a full history from the Veteran. It should be noted the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as observable symptomology and functional limitations. All pertinent symptomology and progression throughout the period on appeal, including symptomology during any reported flare-ups and with repetitive use over time, must be reported in detail. The claims folder and this remand must be made available to the examiner for review, and the examination report must reflect that such a review was undertaken. Any indicated studies must be performed. Based upon a review of all pertinent documents in the Veteran's claims file including medical treatment and examination records, lay statements, and the examination results, the examiner must offer an opinion based upon an accurate medical history with clear conclusions and supporting data providing all information required for rating purposes for right knee DJD, to include: (a.) ROM in active and passive motion, and on weight-bearing and non-weight-bearing, including for the paired joint. (b.) Functional loss in terms of decreased ROM during flare-ups, after repetitive use, and after repetitive use over time. (c.) ROM at which the Veteran experiences pain, and any additional impact caused by motion such as weakness, fatigability, incoordination, or swelling. If the examination does not take place during a flare-up, or repetitive use testing cannot be performed, the examiner must elicit sufficient information from the Veteran (e.g., by description and/or demonstration) regarding the nature, severity, frequency, and duration of any reported flare-ups and any functional loss after repetitive use so as to estimate any ROM loss in both instances. In offering the above opinions, the examiner must consider and discuss as necessary all pertinent lay and medical evidence of record including, but not limited to: (a.) the March 2020 VA examination report indicating "it is possible that [the Veteran] might experience up to an additional five degree decrease in flexion;" and (b.) the March 2021 VA examination report indicating a five degree decrease in flexion and extension after repeated use over time. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this matter, he or she must clearly explain why that is so. If it is not possible to provide a specific measurement or an opinion regarding flare-ups or after repeated use over time without resorting to mere speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts), a deficiency in the record (i.e., additional facts are required), or the examiner (i.e., does not have the required knowledge or training). A complete and thorough rationale for all opinion(s) expressed, with references to pertinent evidence of record, must be provided. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Worsham, Attorney Advisor 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.