Citation Nr: 22012205 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 10-34 048 DATE: March 2, 2022 REMANDED Entitlement to an initial rating in excess of 20 percent for a right shoulder strain is remanded. Entitlement to higher initial ratings for right knee strain with meniscal tear and osteoarthritis, rated as 10 percent disabling prior to September 24, 2021, and as 30 percent disabling since September 24, 2021, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1991 to May 1994. These matters are before the Board of Veterans' Appeals (Board) on appeal from a Rating Decision issued in July 2009 by a Department of Veterans Affairs (VA) Regional Office (RO). These issues were previously remanded by the Board for additional development in January 2021. The Board notes that its previous January 2021 remand addressed the issue of, "Entitlement to an initial rating in excess of 10 percent for a right knee strain." However, in a September 2021 Rating Decision, the RO recharacterized the Veteran's disability as "right knee strain with meniscal tear and osteoarthritis" and assigned a 30 percent disability rating effective September 24, 2021. As such, the Board has also recharacterized the issue on appeal, as captioned above. The Veteran seeks entitlement to higher disability ratings for right shoulder strain as well as right knee strain with meniscal tear and osteoarthritis. Unfortunately, the Board finds that additional development must be undertaken before these claims can be adjudicated on the merits. These claims were previously remanded by the Board in January 2021 because previous examination reports did not clearly state at what point during the range of motion of either joint observed pain started. As such, the Board remanded the claims so that adequate examinations could be administered. Specifically, the examiners were directed to state the degree at which pain began (if pain was present during range of motion testing); to conduct testing for pain on active motion, passive motion, weightbearing, and non-weightbearing; to state whether there was objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination; and to state whether the examination was taking place during a flare-up (if not, then the examiner was requested to ask the Veteran to describe the flare-ups he experienced). Pursuant to the Board's January 2021 Remand directives, the Veteran was provided with a VA Knee and Lower Leg examination and a VA Shoulder and Arm Conditions examination in April 2021. At that time, the Veteran reported weekly flare-ups of severe, stabbing knee pain lasting approximately 2 to 3 days at a time. Additionally, the Veteran reported flare-ups of severe, throbbing/shooting shoulder pain occurring several times per week and lasting approximately 24 to 48 hours at a time. In an attached Medical Opinion, the examiner indicated that the Veteran was not experiencing flare-ups at the time of the examination. With respect to the right shoulder, the examiner noted that, "Pain starts at shoulder flexion and extension, could not [be] fully evaluated as Veteran claims he is in pain, he reports pain every day at around 6-7 and in flare up goes up to 10." The examiner further explained that, "Veteran report of pain which falls in to the category of increased limitation of shoulder movements. Could not complete some of the tests and ROM as he is in pain again states that this is his regular everyday pain not in flare up." With respect to the right knee, the examiner noted that, "Knee pain starts at 80 and could not complete full examination with the pain. Again, Veteran says he is not in flare up at the time of exam. He could not do repetitive movements with pain." The examiner further explained that, "After reviewing medical records and exam, Veteran is noted to be in more pain than in previous evaluation and decreased ROM." In his December 2021 Appellate Brief Presentation, the Veteran's representative argued that the April 2021 VA examination reports were inadequate. Specially, the representative emphasized that the VA Shoulder and Arm Conditions examination report improperly indicated the Veteran's estimated right shoulder ranges of motion after repetitive use and during flare-ups were unchanged from his initial range of motion findings, even though the Veteran was unable to perform repetitive testing due to constant and severe pain. The representative argued that this perceived discrepancy should have been explained by the examiner. Additionally, the representative argued that the examiner failed to state at which degree of motion pain began, as explicitly requested in the Board's January 2021 Remand directives. With respect to the VA Knee and Lower Leg examination, the examiner argued that the examiner failed to provide loss of range of motion estimates during flare-ups, as explicitly requested in the Board's January 2021 Remand directives. The Board agrees. Once VA undertakes the effort to provide an examination, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Additionally, where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, on remand, the Veteran should be provided with adequate VA examinations which comply with the Board's Remand directives. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate medical professional to determine the current severity of his right shoulder disability. The examiner is asked to provide the following: (a) Report the extent of the symptoms of the right shoulder disability in accordance with VA rating criteria. (b) If pain is present during range of motion testing, then the examiner must state the degree at which pain begins. If the documented range of motion reflects where pain begins, then the examiner should state as such. (c) Conduct testing for pain on active motion, passive motion, weightbearing, and non-weightbearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, then an explanation must be provided. (d) State whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the disability. (e) State whether the examination is taking place immediately after repeated use. If not, then the examiner must estimate the Veteran's range of motion after repeated use based on information procured from relevant sources including the lay statements of the Veteran. If the examiner estimates that there is no change in range of motion from the initial findings, then the examiner is asked to explain why this is so. (f) State whether the examination is taking place during a flare-up. If not, then the examiner must 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 his symptoms and/or after repeated use over time. The examiner then must estimate the Veteran's range of motion during a flare-up based on information procured from relevant sources including the lay statements of the Veteran. If the examiner estimates that there is no change in range of motion from the initial findings, then the examiner is asked to explain why this is so. (g) State whether the examiner's current findings would be similar if they had been taken at the time of the prior examinations of record throughout the period on appeal (from November 18, 2008, to present). While the Board acknowledges this requires a retrospective review, that is what is needed to properly evaluate the Veteran's right shoulder condition during the full period on appeal. If any of the requested findings cannot be obtained, then the examiner must provide an explanation. If the examiner suspects that, because of the Veteran's failure to cooperate or failure to make reasonable efforts to complete the tests, he or she is unable to obtain the requested range of motion test results, then he or she should politely advise the veteran of these suspicions and give the veteran the opportunity to participate in the requested tests. The examiner should describe the veteran's response to this warning in his or her written report. 2. Schedule the Veteran for a VA examination with an appropriate medical professional to determine the current severity of his right knee disability. The examiner is asked to provide the following: (a) Report the extent of the symptoms of the right knee disability in accordance with VA rating criteria. (b) If pain is present during range of motion testing, then the examiner should state the degree at which pain begins. If the documented range of motion reflects where pain begins, then the examiner should state as such. (c) Conduct testing for pain on active motion, passive motion, weightbearing, and non-weightbearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, then an explanation must be provided. (d) State whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the disability. (e) State whether the examination is taking place immediately after repeated use. If not, then the examiner must estimate the Veteran's range of motion after repeated use based on information procured from relevant sources including the lay statements of the Veteran. If the examiner estimates that there is no change in range of motion from the initial findings, then the examiner is asked to explain why this is so. (f) State whether the examination is taking place during a flare-up. If not, then the examiner must 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 his symptoms and/or after repeated use over time. The examiner then must estimate the Veteran's range of motion during a flare-up based on information procured from relevant sources including the lay statements of the Veteran. If the examiner estimates that there is no change in range of motion from the initial findings, then the examiner is asked to explain why this is so. (g) State whether there is subluxation or instability (and if so, the degree of such). The examiner should also note whether the Veteran has symptoms related to the removal of semilunar cartilage, or whether he has dislocated semilunar cartilage that causes frequent episodes of locking, pain, and effusion into the knee joint. The examiner is asked to address the April 2021 examiner's findings in Section 6A that the Veteran did not have recurrent subluxation or persistent instability with the findings in Section XV Remarks that the Veteran had a history of recurrent subluxation (moderate) and a history of lateral instability (moderate to severe) and was prescribed a knee brace and cane. (h) State whether the examiner's current findings would be similar if they had been taken at the time of the prior examinations of record throughout the period on appeal (from November 18, 2008, to present). While the Board acknowledges this requires a retrospective review, that is what is needed to properly evaluate the Veteran's right knee condition during the full period on appeal. If any of the requested findings cannot be obtained, then the examiner must provide an explanation. If the examiner suspects that, because of the Veteran's failure to cooperate or failure to make reasonable efforts to complete the tests, he or she is unable to obtain the requested range of motion test results, then he or she should politely advise the veteran of these suspicions and give the veteran the opportunity to participate in the requested tests. The examiner should describe the veteran's response to this warning in his or her written report. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Anthony M. Flamini 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.