Citation Nr: 22014150 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 15-41 142 DATE: March 11, 2022 REMANDED Entitlement to a rating in excess of 10 percent from May 29, 2013, to April 20, 2019, and from August 1, 2019, for a service-connected right knee disability is remanded. Entitlement to a rating in excess of 10 percent from May 29, 2013, to August 27, 2019, and from December 1, 2019, for a service-connected left knee disability is remanded. REASONS FOR REMAND The Veteran had active naval service from June 1982 to December 1982 and April 1989 to August 2008. These matters are before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, these matters were last before the Board, at which time they were remanded for further development. Unfortunately, the Board finds that another remand is necessary in order to afford the Veteran an adequate VA examination. The issues of entitlement to service connection for cervical spine disability, gastroesophageal reflux disease and hypertension were also remanded by the Board. In a November 2021 rating decision, service connection was awarded for these disabilities; representing a full grant of the benefits sought on appeal. 1. Entitlement to a rating in excess of 10 percent from May 29, 2013, to April 20, 2019, and from August 1, 2019, for a service-connected right knee disability is remanded. 2. Entitlement to a rating in excess of 10 percent from May 29, 2013, to August 27, 2019, and from December 1, 2019, for a service-connected left knee disability is remanded. In August 2021, the Board remanded these claims to afford the Veteran a new VA examination. In doing so, the Board noted that there was a crucial discrepancy between the June 2019 and January 2020 VA examination reports concerning whether the Veteran had any meniscus (semilunar cartilage) conditions. The Board also sought clarification on whether the Veteran's knee disabilities were manifested by functional ankylosis. VA obtained an examination in November 2021. The report of that examination document assessments of right knee osteoarthritis and left knee osteoarthritis with slight instability and a meniscal condition. The examiner did not assess whether the Veteran had any meniscal condition of the right knee then, or at any time, but did assess that the Veteran had left knee meniscal tear, frequent episodes of joint "locking" and frequent episodes of pain. At this point, the Veteran had undergone partial (patellar) knee replacements in each knee. While the examiner ruled out actual ankylosis, he did not comment on functional ankylosis, notwithstanding that the Veteran denied flare-ups and additional limitation following repetitive use over time at the time of the examination. Once VA provides an examination, it must be adequate, or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate if it considers the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. Barr, 21 Vet. App. at 311 (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). Moreover, an examination must be based upon consideration of the Veteran's prior medical history and examinations. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Secretary has an affirmative duty to gather the evidence necessary to render an informed decision on a claim. Douglas v. Shinseki, 23 Vet. App. 19 (2009). The Veteran is entitled to substantial compliance with all previous remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The November 2021 is insufficient to decide the claims. First, the examination is based upon an inadequate consideration of the Veteran's prior medical history. The examiner did not comment on the prior VA examination reports, and notably, an October 2013 VA orthopedic surgery note reflecting that an MRI showed what appeared to be tears in the lateral meniscus, bilaterally. Secondly, the examiner did not address whether either knee disability had manifested by functional ankylosis, as requested by the Board in its remand directives. Accordingly, this case must be returned. 38 C.F.R. § 4.2. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination in order to ascertain the current severity of the service-connected left and right knee disabilities. To the extent possible, the functional impairment due to weakened movement, excess fatigability, and pain on use should be assessed in terms of additional degrees of limitation of motion. The examiner should test for pain on both active and passive motion, in weight-bearing and non-weight bearing, and, if possible, each joint should be contrasted with the range of the opposite undamaged joint. The examiner should, if possible, note facial expressions of pain, crepitation in soft tissues and joint structures, and test for pain throughout range of motion in the various ways described above. If the Veteran describes flare-ups or additional limitation following repetitive use, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups or following repetitive use. An estimate of additional degrees of limitation of motion during the flare-ups and following repetitive use should be provided. If this is not feasible, the examiner should so state and explain why. The examiner MUST identify if the functional limitation of either of the Veteran's knee disabilities, including documented reports of stiffness and locking, including during flare-ups or after repeated use over time, have more nearly approximated ankylosis, i.e., functional ankylosis, at any point during the appeal period. The examiner is advised that when evaluating a disability under the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis. Chavis v. McDonough, 34 Vet. App. 1, (U.S. 2021). Therefore, ankylosis can be shown via functional loss consistent with that contemplated by ankylosis. See 38 C.F.R. §§ 4.40, 4.45; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). The examiner MUST also specifically comment on whether the Veteran has had a meniscal condition of either knee (including removal or dislocation of the semilunar cartilage) at any point during the appeal. The examiner's attention is directed to the October 2013 VA orthopedic record noting what appeared to be tears in both lateral menisci, as well as the June 2019, January 2020, and November 2021 VA examination reports. Any opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. J.N. MOATS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph R. Keselyak, 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.