Citation Nr: 22016801 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 17-14 593 DATE: March 23, 2022 REMANDED Entitlement to a disability rating in excess of 10 percent for left knee degenerative joint disease (DJD) is remanded. Entitlement to a disability rating in excess of 10 percent prior to December 7, 2020, and in excess of 20 percent thereafter for left knee instability is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Air Force from December 1974 to March 1996. This matter was previously before the Board in February 2019 and August 2021 but was remanded to the Agency of Original Jurisdiction (AOJ) for further development. In February 2019, the Board directed the AOJ to provide the Veteran with an examination that addressed his flare-ups. This was because the Veteran reported flare-ups at his December 2016 VA knee examination but the examiner's discussion did not comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017). In August 2021, the AOJ was required to obtain and associate any VA and private medical treatment records regarding the Veteran's left knee disability. The requested medical files were associated with the claims file in September 2021. Accordingly, the Board finds there has been substantial compliance with the remand instructions regarding medical records. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). However, there was not substantial compliance with the February 2019 directive regarding the VA examination. 1. Entitlement to a rating greater than 10 percent for left knee (DJD) 2. Entitlement to a rating greater than 10 percent for left knee instability The Veteran claims entitlement to increased disability ratings for left knee DJD and left knee instability. In a March 2022 informal hearing presentation, the Veteran's representative stated, "[the Veteran] asserts that during flare-up episodes his [range of motion] is significantly limited which has a severe impact on activities of daily living." In response to the August 2019 remand, the Veteran underwent a VA examination for his left knee in December 2019. Because the Veteran did not report having flare-ups, the examiner did not provide the examination that the Board required in its remand. The Veteran's left knee disabilities were mostly recently evaluated at a December 2020 VA examination. Again, the Veteran did not report flare-ups of his left knee disability. The examiner also did not provide an estimated range of motion measurements or discuss the Veteran's left knee stability during a flare up. The December 2019 and December 2020 VA examinations are inadequate because they do not provide an estimate of the Veteran's range of motion during a flare-up. There was not substantial compliance with the Board's remand directives. Stegall, 11 Vet. App. 268. Even if the Veteran does not report flare-ups at the examination, the estimate is required because he reported them during the appeal period. Accordingly, a new examination needed to address flare-ups. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA knee disabilities examination to ascertain the current severity of service-connected left knee disabilities. The claims file must be made available to and be reviewed by the examiner. In addition to all findings identified on the appropriate examination forms, the examiner should determine the effective range of motion in the Veteran's knee and present the results of range of motion tests in a written report which complies with 38 C.F.R. § 4.59 by conducting range of motion testing for both active and passive motion, and in weight bearing and non-weight-bearing, and, with respect to the left knee, recording its range of motion if it is undamaged. The examiner's report should describe objective evidence of painful motion, if any, during each test. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain the basis for this decision. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flare ups or repetitive use, and if so, the examiner must estimate range of motion during flare ups or repetitive use. If the examination does not take place during a flare up or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flare ups or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. If the examiner is unable to provide such an opinion regarding flare-ups without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. It is not sufficient to abstain from providing an opinion because the Veteran is not examined after repetitive use over time or not examiner during a flare up. 2. After all completed development, the AOJ should then readjudicate the claim. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Riordan, 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.