Citation Nr: 21041492 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 09-36 063 DATE: July 9, 2021 REMANDED Entitlement to an evaluation in excess of 10 percent for right knee limitation of flexion is remanded. Entitlement to an evaluation in excess of 10 percent for right knee instability is remanded. Entitlement to an evaluation in excess of 10 percent prior to July 21, 2011, and an evaluation in excess of 20 percent from October 1, 2011, for left knee degenerative joint disease is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1999 to October 2004. The Veteran testified before the undersigned Veterans Law Judge in an October 2011 Travel Board Hearing sitting in the Department of Veterans Affairs (VA) Regional Office in Chicago, Illinois. A transcript of that hearing is included in the claims file. The Veteran's appeal from an August 2006 rating decision is once before the Board of Veterans' Appeals (the Board). The procedural history of the Veteran's appeal was summarized in the Board's September 2017 decision. At that time, the Board remanded the Veteran's claims for increased ratings for his service-connected right knee disability and left knee disability to the Agency of Original Jurisdiction (AOJ) to afford him new VA examinations following the holding in Correia v. McDonald, 28 Vet. App. 158 (2016) in which U.S. Court of Appeals for Veterans Claims interpreted the final sentence of 38 C.F.R. § 4.59 to require that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The Veteran received VA examinations in October 2017 and December 2018. Thereafter, the AOJ provided the Veteran a November 2019 supplemental statement of the case in which it continued a 10 percent evaluation for painful motion in the Veteran's right knee, a 10 percent evaluation for right knee instability, and a 20 percent rating for his left knee disability. The Veteran's appeal is once again before the Board. In its September 2017 decision, the Board took jurisdiction over the Veteran's entitlement to a total disability evaluation due to individual employability (TDIU) for the sole purpose of remanding the issue to the AOJ to afford the Veteran a statement of the case. The AOJ provided that statement of the case to the Veteran in September 2017. The Veteran did not file a VA Form 9, Substantive Appeal, within 60 days of receiving the statement of the case. See 38 C.F.R. §§ 20.202, 20.302(b)(1) (2017). Because the Veteran did not perfect his appeal as to that issue, his entitlement to a TDIU is not before the Board. 1. Entitlement to Increased Evaluations for Service-Connected Right and Left Knee Disabilities A remand by the Board confers upon a veteran, as a matter of law, the right to compliance with the Board's remand order. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Through a March 2020 statement from his representative, the Veteran contends that the AOJ has not substantially complied with the Board's September 2017 remand directives because it did not obtain retrospective opinions regarding the severity of the Veteran's bilateral knee symptoms since VA received his claim in March 2006. While the Board regrets the additional delay in the adjudication of the Veteran's claims on the merits, it agrees that a remand is needed to ensure substantial compliance with its September 2017 remand directives. In its September 2017 remand directives, the Board directed the AOJ to obtain a new VA examination to assess the severity of the Veteran's service-connected right and left knee disabilities. As part of the requested examination, the Board also requested that the VA examiner provide a retrospective medical opinions addressing the (1) ranges of motion and additional functional impairment of the bilateral knees since 2006, (2) whether the severity of the Veteran's service-connected bilateral knee disabilities since 2006 was worse than was shown in previous VA examinations, and (3) additional functional impairment on repeated use or during flare-ups of the bilateral knees since 2006. The Veteran received VA examinations assessing the severity of his service-connected bilateral knee disabilities in October 2017 and December 2018. Those examinations omitted the requested retrospective opinions regarding the Veteran's symptoms dating back to his March 2006 claim. Because of those omissions, the Board concludes that there has not been substantial compliance with its September 2017 remand directives, and it must remand the Veteran's appeal. See Stegall, 11 Vet. App. at 270-71. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right and left knee disabilities. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. The VA examiner must also provide a retrospective medical opinion addressing the ranges of motion and additional functional impairment of the bilateral knees since March 2006. (Continued on the next page) In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement 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). The VA examiner must also provide a retrospective medical opinion addressing the ranges of motion and additional functional impairment of the bilateral knees since March 2006. 2. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement 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). In doing so, the VA examiner must also provide a retrospective medical opinion addressing any additional functional impairment due to repetitive use over time or flare-ups back to March 2006. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Douglas M. Humphrey, 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.