Citation Nr: 1753041 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 11-05 579A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a rating in excess of 20 percent for lumbar spine degenerative disc disease (DDD). 2. Entitlement to a rating in excess of 10 percent for left knee degenerative joint disease (DJD). 3. Entitlement to an initial rating in excess of 30 percent for left knee instability. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and C. H. ATTORNEY FOR THE BOARD S. S. Mahoney, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from July 1984 to July 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2009 and January 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In May 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. In July 2015 and November 2016, the Board remanded the issues on appeal for further development. The Veteran's claims file has been returned to the Board for further appellate proceedings. During the pendency of this appeal, in October 2012, the RO granted service connection for right lower extremity radiculopathy and assigned an initial 10 percent rating, effective June 12, 2009. In January 2016, the RO also granted service connection for left lower extremity radiculopathy and assigned an initial 10 percent rating, effective March 11, 2013. The Veteran has not timely expressed disagreement with those determinations. Thus, these separately compensated manifestations of her back disability are not presently on appeal. Additionally, a March 2017 rating decision increased the Veteran's rating for left knee instability from 10 percent to 20 percent, effective December 15, 2016, and increased the ratings for right and left lower extremity radiculopathy to 20 percent each, effective December 29, 2016. Soon after, a May 2017 rating decision again increased the Veteran's left knee instability rating to 30 percent, effective August 11, 2009, and increased the Veteran's lumbar spine DDD rating from 10 percent to 20 percent, effective August 11, 2009. Moreover, it also assigned the right lower extremity radiculopathy 20 percent rating to an earlier effective date of June 12, 2009, as well as the left lower extremity radiculopathy 20 percent rating, effective March 11, 2013. The issues of entitlement to increased ratings for lumbar spine DDD and left knee DJD are addressed in the REMAND portion of the decision and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's left knee has been manifested by severe instability throughout the appeal period. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for left knee instability are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.71a, Diagnostic Code (DC) 5257 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran's left knee instability is rated at 30 percent rating under DC 5257 for the entire appeal period. DC 5257 provides a maximum 30 percent rating for severe instability impairment with recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. As the Veteran is in receipt of the maximum schedular rating available for her left knee instability, a rating in excess of 30 percent is not possible under DC 5257. The only possibility of a rating in excess of 30 percent for the knees is following a knee replacement, which is not applicable here, or via the limitation of motion and ankylosis codes, which are considered in rating the Veteran's left knee DJD, which is remanded below. Thus, a rating in excess of 30 percent is not warranted for left knee instability. ORDER An initial rating in excess of 30 percent for left knee instability is denied. REMAND The Board apologizes for the delay, and realizes that this appeal has already been remanded twice. However, a third remand is required to comply with prior remand directives for an examination that complies with Correia v. McDonald, 28 Vet. App. 158 (2016). Here, the December 2016 examination reports and January 2017 addendum opinions do not comply with Correia. With regard to the spine, in the January 2017 addendum report, the examiner noted pain on passive range of motion and on weight bearing, contradicting the findings in the December 2016 examination report, and did not specify range of motion measurements in these areas. With regard to the left knee, the VA examiner noted pain on passive range of motion in the addendum report, but did not specify any range of motion measurements. Thus, a new examination is needed, that includes a Correia-compliant retrospective opinion, as well as a retrospective opinion that complies with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), considering the Veteran's reports of flare-ups. See 2009 VA examination report for the back and 2009, 2012 and 2015 VA examination reports for the left knee. Updated treatment records should also be secured. Accordingly, the case is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding private treatment records. 3. Then schedule the Veteran for a VA examination to determine the current nature and severity of her lumbar spine DDD and left knee DJD. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in (1) active motion, (2) passive motion, (3) in weight-bearing, (4) in nonweight-bearing, and (5) with regard to the knee, with range of motion of the opposite undamaged joint. Please specify range of motion measurements in all areas outlined above. 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 why that is so. The examiner is also asked to address the following: (a) Please provide an opinion as to the full range of motion of the Veteran's lumbar spine and left knee since August 2009 in (1) active motion, (2) passive motion, (3) in weight-bearing and (4) in nonweight-bearing, and (5) with regard to the knee, with range of motion of the opposite undamaged joint. Please specify range of motion measurements in all areas outlined above. If the examiner cannot provide an opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). (b) Considering the Veteran's reported history, please also provide an opinion describing functional impairment of the Veteran's lumbar spine and left knee due to flare-ups since August 2009, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. Please refer to the 2009 VA examination report for the back and 2009, 2012 and 2015 VA examination reports for the left knee. If unable to provide such an opinion without resorting to speculation, please 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. A complete rationale shall be given for all opinions and conclusions expressed. 4. Then, after taking any additional development deemed necessary, readjudicate the issues on appeal. The Veteran has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (West 2014). ____________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs