Citation Nr: 1751182 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 07-37 504 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for chondromalacia patella of the right knee. 2. Entitlement to an initial evaluation in excess of 10 percent for chondromalacia patella of the left knee. 3. Entitlement to an initial compensable evaluation for limitation of flexion of the right knee. 4. Entitlement to an initial compensable evaluation for limitation of flexion of the left knee. 5. Entitlement to a separate rating for instability of the right knee. 6. Entitlement to a separate rating for instability of the left knee. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD H. Fisher, Associate Counsel INTRODUCTION The Veteran had honorable active duty service with the Army from April 1979 to September 2005. These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 2005, March 2006, and July 2017 and rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. A Travel Board hearing on these issues took place in November 2010 before a Veterans Law Judge (VLJ). The VLJ subsequently left the Board, and a notice of the departure was sent to the Veteran in August 2017. The Veteran was afforded the opportunity to have another hearing. The Veteran did not request a second hearing within 30 days of the notice. In May 2011, the Board remanded the issues of entitlement to initial evaluations in excess of 10 percent for chondromalacia patella of the knees for additional evidentiary development. In April 2016, the Board denied entitlement to initial evaluations in excess of 10 percent for chondromalacia patella of the knees. In December 2016, based upon a Joint Motion for Partial Remand (JMPR), the Court of Appeals for Veterans Claims (Court) vacated the Board's denial of these issues, and remanded for additional development to address objective and subject symptoms reported by the Veteran. In March 2017, the Board remanded these issues for additional evidentiary development, to include a new VA examination. The JMPR also remanded the issue of entitlement to an initial compensable disability rating for residuals of a right foot injury prior to November 1, 2012. In a March 2017 decision, the Board denied the claim. In July 2017, the RO granted separate ratings for limitation of flexion of the right and left knees with a noncompensable evaluation for each. The issues of entitlement to an initial evaluation in excess of 10 percent for chondromalacia patella of the knees and entitlement to compensable evaluations for limitation of flexion of the knees are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran has slight instability of the right knee. 2. The Veteran has slight instability of the left knee. CONCLUSIONS OF LAW 1. The criteria for a separate 10 percent rating for slight right knee instability have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.21, 4.71a, Diagnostic Code 5257 (2017). 2. The criteria for a separate 10 percent rating for slight left knee instability have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.21, 4.71a, Diagnostic Code 5257 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Separate Evaluations for Instability Under Diagnostic Code 5257, a 10 percent evaluation is warranted when there is slight recurrent subluxation or lateral instability of a knee. A 20 percent evaluation is warranted when there is moderate recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a (2017). Diagnostic Code 5257 is based upon instability and subluxation, not limitation of motion, as a result, the criteria set forth in DeLuca do not apply. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The Veteran reported subjective complaints of instability of his right and left knees. He has endorsed symptoms of buckling and giving way, sometimes as often as multiple times per week, which caused him to fall. See e.g., September 2007 VA examination; April 2009 VA examination; November 2010 hearing testimony. The most recent VA examination in May 2017 notes that the Veteran reported feeling "like his knees are going to give out at times" and that he suffered incidents in which "his knees gave out and buckled on him causing him to fall down the stairs." The Veteran is competent to report observable symptoms such as his knees giving out. His assertions are also credible. As a result of the Veteran's competent, credible subjective complaints of instability, separate 10 percent ratings are warranted for instability of the left and right knees. However, objective clinical testing conducted at his VA examinations does not demonstrate instability of either knee. At his May 2009 VA examination he had subjective reports of instability but both knees were stable upon clinical testing. At his November 2012 VA examination, his joint stability tests were all normal in both knees, and no history of subluxation and dislocation was reported. At his May 2017 examination, there was no history of recurrent subluxation or lateral instability. Further, joint stability testing was performed and the anterior, posterior, medial, and lateral instability tests were all normal for each knee. As the Veteran's knee instability complaints are subjective and not confirmed upon objective testing, his instability is more accurately described as mild. Therefore, the instability is not more nearly approximated by the 20 percent criteria. Based upon the probative medical and lay evidence of record, the Board finds that separate 10 percent evaluations for instability of the right and left knees are warranted. ORDER A separate 10 percent rating for right knee instability is granted. A separate 10 percent rating for left knee instability is granted. REMAND Unfortunately, remand is again required to properly adjudicate the issues on appeal. As discussed in the JMPR, there remains a question as to the objective and subjective symptoms experienced by the Veteran regarding his bilateral knee disability. The most recent VA examination in May 2017 does not sufficiently address issues raised by CAVC in determining the nature and severity of the Veteran's symptoms attributable to his bilateral knee disability. In the May 2017 examination, the examiner indicated that repetitive use testing, which showed a decrease in range of motion of both knees, was medically inconsistent with the Veteran's statements describing functional loss during flare ups. The examiner later stated that repetitive motion led to a decrease in range of motion in both knees, and stated that a 50 degree change was likely in the right knee with significant flare up, but only a 10 degree change in the left knee. After repetitive use, both knees were measured with flexion ending at 50 degrees. The examiner did not specifically address the inconsistency alleged in the Veteran's statement regarding functional loss, and gave a contradictory explanation for functional loss during a flare up in the remarks. As it is noted that repetitive use does cause a decrease in the range of motion of both knees, a more detailed explanation must be provided in an addendum opinion. Accordingly, the case is REMANDED for the following action: 1. Obtain an addendum opinion from the May 2017 examiner, if available, to clarify the extent and severity of the Veteran's bilateral knee disability when considering both subjective and objective evidence. A new examination of the Veteran is only needed if deemed necessary by the examiner. The examiner must review the entire claims file, with particular attention to lay statements of record regarding symptoms during flare ups. The examiner must advance an opinion as to the following: a. Explain why the May 2017 examination results were medically inconsistent with the Veteran's statements describing functional loss during flare ups. b. Indicate whether flare ups would cause an additional 10 degrees of loss of range of motion in the left knee, and an additional 50 degrees of loss of motion in the right knee, as indicated in the remarks of the May 2017 examination, or if total range of motion during flare ups would not change from the measurements in repetitive use testing. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should fully explain why this is the case. 2. Following completion of the foregoing, the AOJ should review the record and readjudicate the claims on appeal. If any remain denied, the AOJ should issue an appropriate Supplemental Statement of the Case, afford the Veteran and his representative an opportunity to respond, and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs