Citation Nr: 21041622 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 18-37 056 DATE: July 9, 2021 REMANDED Entitlement to a rating in excess of 10 percent for left knee patellofemoral syndrome is remanded. Entitlement to a rating in excess of 10 percent for right knee patellofemoral prior to May 6, 2021, and entitlement to a rating in excess of 30 percent for right knee patellofemoral syndrome from May 6, 2021 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from December 1975 to June 1982 and from October 2001 to May 2002. This matter comes before the Board of Veterans'Appeals (Board) on appeal from a rating decision dated in June 2016 of the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Louis, Missouri. 1. Entitlement to a rating in excess of 10 percent for left knee patellofemoral syndrome is remanded. 2. Entitlement to a rating in excess of 10 percent for right knee patellofemoral syndrome is remanded. The Board remanded this matter for additional development in January 2021, specifically for a new VA examination regarding the Veteran's bilateral knee condition. See January 2021 BVA Decision. The Veteran filed an increased rating claim for his bilateral patellofemoral syndrome in March 2008. The RO granted a 10 percent rating for the left and right knees, effective March 13, 2008. The RO also granted a 30 percent rating for right knee patellofemoral syndrome effective May 6, 2021. A VA knee and lower leg examination was conducted in May 2021. The examiner noted diagnoses of bilateral osteoarthritis, patellofemoral pain syndrome, and meniscal tear. See May 2021 VA Examination. Additionally, the Veteran was diagnosed with a popliteal cyst of the left knee. The Veteran reported that his bilateral knee flare-ups varied from moderate to severe severity. The examiner measured the Veteran's active and passive range of motion for right knee flexion at 20 degrees and left knee flexion at 60 degrees. Repetitive-use testing with at least three repetitions was completed with range of motion for right knee flexion at 15 degrees and left knee flexion at 55 degrees. Repeated use over time testing was not completed but the examiner estimated range of motion for right knee flexion at 15 degrees and left knee flexion at 55 degrees. The examiner was also unable to perform testing during a flare-up and estimated that the Veteran's range of motion during a flare-up would be also right knee flexion at 15 degrees and left knee flexion at 55 degrees. No further opinion or rationale was provided regarding the Veteran's range of motion during flare-ups. Given that the examiner determined repetitive-use testing, repeated use over time, and flare-ups all caused equal range of motions limitation for the Veteran without further explanation, the Board finds that the examiner did not adequately consider the Veteran's contentions of moderate to severe flare-ups. Therefore, the exam is inadequate for purposes of determining present bilateral knee functionality. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The VA also has a duty to assist veterans in developing their claims for benefits. 38 C.F.R. § 3.159. The duty to assist includes providing a medical examination when necessary to decide a claim. 38 C.F.R. § 3.159(c)(4). Once VA undertakes the effort to provide an examination, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board finds that there has not been substantial compliance with its previous remand directives based on the inadequate medical examination. As such, the matter must be remanded for a new VA examination to be conducted. The matters are REMANDED for the following action: 1. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. 2. Obtain updated VA and/or pertinent private treatment records. If such records are unavailable, the Veteran's claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 3. After all outstanding treatment records have been obtained, schedule the Veteran for a VA knee examination to ascertain the current nature and severity of his service-connected left knee condition. 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. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing for each knee. 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 examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups for each knee. 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). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Schmidt 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.