Citation Nr: 22019879
Decision Date: 04/03/22	Archive Date: 04/03/22

DOCKET NO. 09-13 517
DATE: April 3, 2022

REMANDED

Entitlement to a disability rating in excess of 10 percent for left knee patellofemoral pain syndrome, with degenerative arthritis is remanded.

Entitlement to a disability rating in excess of 10 percent for right knee patellofemoral pain syndrome, with degenerative arthritis is remanded.

INTRODUCTION

The Veteran served on active duty from April 1978 to October 1987.

In March 2010, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO.  A transcript of that hearing is of record.

When this case was most recently before the Board in January 2022, the above-noted issues were remanded for additional development.  The case has now been returned to the Board for further appellate review.

REASONS FOR REMAND

The Board has explained on numerous occasions that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

The Board has also explained on numerous occasions that a musculoskeletal examination must include an assessment of a veteran's flare-ups, as well as range of motion measurements in weight bearing, non-weight bearing, in active motion, and in passive motion.  See Sharp v. Shulkin, 29 Vet. App. 26 (2017); see also Correia v. McDonald, 28 Vet. App. 158 (2016).  The Veteran underwent another VA knee examination in February 2022; however, that examiner, like numerous prior VA examiners failed to provide non-weight bearing, weight bearing, or passive range of motion assessments.  Based on the foregoing insufficiencies, the Board finds a remand is unfortunately again required.

Accordingly, the case is REMANDED for the following action:

Afford the Veteran a VA examination by a physician with sufficient expertise to fully assess the severity of the Veteran's service-connected left and right knee disabilities.  All pertinent evidence of record should be made available to and reviewed by the examiner.  Any indicated studies should be performed.

Ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight-bearing and nonweight-bearing range of motion assessments.

In addition, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost.

If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so.

 

 

T. REYNOLDS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	G. Fraser, 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.