Citation Nr: 21029837 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 10-31 482 DATE: May 17, 2021 REMANDED Entitlement to a rating in excess of 10 percent for instability of the left knee is remanded. Entitlement to a rating in excess of 10 percent for instability of the right knee is remanded. Entitlement to a rating in excess of 10 percent for degenerative arthritis of the left knee is remanded. Entitlement to a rating in excess of 10 percent for degenerative arthritis of the right knee is remanded. REASONS FOR REMAND The Veteran had active service from May 1966 to May 1986. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in May 2017. This appeal was remanded by the Board in September 2017. When this matter was again before the Board in December 2019, the Board denied a rating in excess of 10 percent for limitation of motion of the right and left knees and entitlement to separate 10 percent rating for right knee and left knee instability. The Veteran appealed the Board's December 2019 decision to the United States Court of Appeals for Veterans Claims (Court), which in a December 2020 order, granted the parties' joint motion for remand, vacating the Board's month/year decision and remanding the case for compliance with the terms of the joint motion. 1. Entitlement to a rating in excess of 10 percent for instability of the left knee is remanded. 2. Entitlement to a rating in excess of 10 percent for instability of the right knee is remanded. 3. Entitlement to a rating in excess of 10 percent for degenerative arthritis of the left knee is remanded. 4. Entitlement to a rating in excess of 10 percent for degenerative arthritis of the right knee is remanded. The Veteran seeks entitlement to ratings in excess of 10 percent each for left and right knee instability and left and right knee degenerative arthritis. In the December 2020 joint motion for remand, the parties determined that the Board relied on an inadequate VA examination report which failed to elicit relevant information about the Veteran's right and left knee flare-ups and functional limitations after repeated use and failed to provide range of motion estimates in all required modes. Thus, the Board must remand this matter for compliance with the Court's December 2020 order granting the parties' joint motion to remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion or explain why the terms will not be fulfilled.). The matters are REMANDED for the following action: Schedule the Veteran for appropriate VA examinations (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the current nature and severity of his left and right knee instability and degenerative arthritis disabilities. All necessary tests should be performed. All findings should be reported in detail. The examiner should identify all left and right knee pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. 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. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Booker 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.