Citation Nr: 21041291 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 09-37 331 DATE: July 8, 2021 REMANDED A rating in excess of 10 percent for a right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1969 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Agency of Original Jurisdiction (AOJ). The Veteran participated in a hearing before the undersigned in October 2012, and a transcript of this hearing has been included in the claims file. This matter was most recently before the Board in June 2020, when it remanded the Veteran's claim in order to afford the Veteran with an additional examination. The Board directed the examiner to fully address the current severity of the Veteran's right knee disability, including an assessment of the severity of the Veteran's symptoms during flare-ups. The Board additionally directed the examiner, after consulting with the Veteran regarding his lay history of symptoms, to provide a retrospective opinion addressing the severity of the Veteran's right knee symptoms since 2008. The Veteran underwent an examination in November 2020, at which time the Veteran essentially endorsed experiencing flare ups of right knee symptoms with his description that "some days [were] worse than others". Despite this report, the examiner stated that the Veteran did not experience flare-ups and did not assess the degree of the Veteran's right knee impairment during such times. Additionally, the examination report does not address the Board's request for a retrospective opinion at all. As such, the Board finds that there has not been substantial compliance with its June 2020 remand directives, and a remand of the Veteran's claim is again necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for an examination by an appropriate clinician, but not the clinician who conducted the November 2020 examination, to address the current severity of his right knee disability. The examiner should provide a full description of the Veteran's right knee disability and report all signs and symptoms necessary for evaluating such disability under the rating criteria. (a.) With regard to range of motion testing, the examiner must specifically state the range of motion for active flexion and extension, and the range of motion for passive flexion and extension. If the ranges are the same for both active and passive, the examiner must state such. The examiner should state where objective evidence of pain begins on flexion and extension. The examiner does not need to test the left knee because it is not an undamaged joint. (b.) With regard to flare-ups, the examiner should attempt to elicit from the Veteran more information than just "increased pain" or "pain on use" or "some days . . . worse than others" when describing flare-ups. The examiner should request the Veteran state the frequency, duration, severity, precipitating event, and additional degree of limitation during a flare-up. Both the May 2018 and November 2020 examination reports failed to elicit this information; the examiner must address flare-ups in the assessment of the severity of the Veteran's right knee disability in order for the examination to be adequate. (c.) The examiner should provide a retrospective opinion assessing the Veteran's right knee disability from 2008 forward. The examiner should review the April 2008, May 2011, January 2015, June 2016, and May 2018 VA examination reports with the Veteran, and ascertain the level of severity not already noted in the examination reports. The examiner should also consider that the Veteran had right knee surgery in 2014. Before rendering this assessment, the examiner should elicit information from the Veteran regarding his lay history of right knee symptoms. For example, the examiner should assess whether the Veteran remembers having flare-ups causing significant functional impairment, and if so, the frequency and duration of such flare-ups. The examiner should assess whether the Veteran remembers any additional functional impairment not noted in the above examination reports; if so, the examiner should attempt to quantify such functional impairment in terms of lost motion. Both the May 2018 and November 2020 examination reports did not elicit this information; the examiner must provide this retrospective assessment of the Veteran's right knee disability in order for the examination to be adequate. If it is not possible to provide a specific measurement or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.A. Flynn, 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.