Citation Nr: 21029856 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 16-24 201 DATE: May 17, 2021 REMANDED Entitlement to increased ratings for residuals of a right knee injury, currently assigned a 10 percent rating based on limitation of flexion and a separate 10 percent rating for instability, is remanded. Entitlement to increased ratings for residuals of a left knee injury, currently assigned a 10 percent rating based on limitation of extension and a separate noncompensable rating based on limitation of flexion, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from July 1975 to July 1995. These matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Veteran testified before the undersigned Veterans Law Judge at a video conference hearing. A transcript of the hearing is of record. The Veteran was previously represented in this appeal by a private attorney. However, in October 2020, the Veteran revoked this representation and indicated that she would be proceeding in her appeal pro se. The Board remanded these matters in July 2020 and December 2020 for additional development. Unfortunately, as explained below, the Board is not satisfied that there was substantial compliance with its prior remand instructions. Therefore, the issues remaining on appeal must be remanded once again for compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). 1. Entitlement to increased ratings for residuals of a right knee injury, currently assigned a 10 percent rating based on limitation of flexion and a separate 10 percent rating for instability, is remanded. 2. Entitlement to increased ratings for residuals of a left knee injury, currently assigned a 10 percent rating based on limitation of extension and a separate noncompensable rating based on limitation of flexion, is remanded. Pursuant to the December 2020 Board remand, the Veteran underwent a VA examination in February 2021 to assess the current severity of her right and left knee disabilities. Upon examination, the Veteran reported current symptoms of frequent stiffness, swelling, instability, weakness, popping, giving out, locking up, and shooting pains in both knees. She stated that family members have to physically move her knees for her, as well as help her get up and perform activities of daily living. Flare-ups are severe, occur daily, and last all day; they are precipitated by standing or walking short periods and are alleviated with heat, ice, and rest. The Veteran's statements on examination are consistent with earlier statements as to the severity of her knee disabilities. In this regard, in an April 2019 statement to VA, the Veteran reported that "there are days when the [knee] pain [is] so bad I am unable to walk or perform simple task or take care of myself [or] prepare meals. Both knees are not stable. I have episodes where my knee joints become stiff and swell, [which] makes it difficult to bend." Likewise, in an April 2020 VA primary care note, the Veteran reported that "there is intense stiffness at times [and] I am unable to move my knees. My husband has to physically move my knees." Despite the Veteran's competent statements, the February 2021 VA examiner marked on the examination report that there is no history of instability, recurrent subluxation, or frequent effusion of the knees. These findings were not accompanied by any explanation or supporting rationale, despite the fact that the Veteran is currently in receipt of a 10 percent rating for right knee instability due to a documented history of lateral instability. Moreover, when assessing additional functional loss of the knees after repeated use over time and during flare-ups, the VA examiner estimated that the Veteran's range of motion in flexion would decrease by 10 degrees (resulting in a flexion endpoint of 80 degrees) in both knees. Despite the examination report directing the examiner to "cite and discuss the evidence" upon which this estimate is based, the examiner did not provide an explanatory rationale for this finding. As such, it is unclear to the Board how the examiner determined that the Veteran would have flexion to 80 degrees in both knees during flare-ups when she has consistently reported to VA physicians, examiners, and adjudicators that she is physically unable to move her knees due to pain, stiffness, and swelling after repeated use over time or during flare-ups and, thus, must rely upon family members to move her knees and help her move during these occurrences. In light of the above, the Board finds the February 2021 VA knee examination to be inadequate for properly evaluating the current severity of the Veteran's left and right knee disabilities. As noted above, the examination report is inconsistent with the Veteran's lay reports and other medical evidence of record and, in these instances, the examiner did not support her findings with an adequate rationale. Because the RO did not obtain an adequate examination in accordance with the Board's prior remand directives, these matters must once again be remanded for compliance. See Stegall, 11 Vet. App. at 268. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination with a VA physician (M.D.) with the appropriate expertise (i.e. orthopedist) to fully assess the current severity of the Veteran's service-connected left and right knee disabilities. The claims file must be made available to the examiner and it should be reviewed in its entirety, to include a copy of this REMAND. A complete history of symptoms must be elicited from the Veteran and recorded in the examination report. All appropriate tests, studies, or imaging should be accomplished, and all clinical findings must be reported in detail. Thereafter, the examiner is asked to fully respond to the following: (a) Report the extent of the symptoms of the left and right knee disabilities in accordance with VA rating criteria. (b) Conduct range of motion testing of the left and right knees, specifically noting the motion in degrees on active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, s/he should clearly explain why. (c) Render specific findings as to whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the left and right knees. If pain on motion is observed, the examiner should indicate the point at which pain begins. (d) State whether the examination is taking place during a period of flare-up. If not, the examiner must ask the Veteran to describe the flare-ups she experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity, and/or extent of functional impairment experienced during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and other medical evidence of record, the examiner must provide an opinion estimating any additional degrees of limitation of range of motion caused by functional loss during a flare-up. It should be noted that VA's Clinicians Guide specifically advises examiners to try to procure information necessary to render an opinion regarding flare-ups from Veterans. (e) Conduct muscle strength and joint stability testing and determine whether the Veteran's left and/or right knees show signs of recurrent subluxation or lateral instability. If the examiner determines that there is no objective evidence of joint instability, the examiner must explain the basis of such a finding in light of the Veteran's competent reports of experiencing frequent weakness and "giving out" of her knees. Moreover, if the examiner determines that the Veteran's right knee instability is caused by the Veteran's meniscus tear, rather than recurrent subluxation or lateral instability, this finding should be stated and fully explained. A full and complete explanatory rationale must be provided for any opinion offered. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repeated use without resorting to speculation, the examiner must 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). The Board reminds the VA examiner that failure to comply with the directives outlined herein renders an examination report inadequate and will result in further remand of the Veteran's claims. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Melissa Barbee, 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.