Citation Nr: 20000089 Decision Date: 01/02/20 Archive Date: 01/02/20 DOCKET NO. 16-17 494 DATE: January 2, 2020 ORDER The appeal for entitlement to an effective date prior to March 17, 2011 for service connection for right hip strain based on clear and unmistakable error (CUE) in a June 15, 2000 rating decision is dismissed. The appeal for entitlement to an effective date prior to March 17, 2011 for service connection for left hip strain based on CUE in a June 15, 2000 rating decision is dismissed. The appeal for entitlement to service connection for arthritis is dismissed. Service connection for fibromyalgia is granted. An initial 20 percent rating for costochondritis is granted. REMANDED The appeal for entitlement to service connection for instability of the right knee is remanded. The appeal for entitlement to service connection for instability of the left knee is remanded. The appeal for entitlement to a rating in excess of 10 percent for a right knee disability is remanded. The appeal for entitlement to a rating in excess of 10 percent for a left knee disability is remanded. The appeal for entitlement to a rating in excess of 10 percent for a right ankle disability is remanded. The appeal for entitlement to a rating in excess of 10 percent for right hip strain is remanded. The appeal for entitlement to a rating in excess of 10 percent for left hip strain is remanded. FINDINGS OF FACT 1. The June 15, 2000 rating decision the Veteran contends contains CUE is not final, and thus cannot be the basis for claims for earlier effective dates based on CUE. 2. On August 12, 2019, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran on the record at her hearing that a withdrawal of the appeal for service connection for arthritis is requested. 3. The Veteran has a current diagnosis of fibromyalgia and was treated for joint pains during active service; the evidence both for and against a finding of a nexus between the current diagnosis and the symptoms in service is in equipoise. 4. The Veteran’s costochondritis is productive of two cardinal symptoms of muscle injury, consistent pain and fatigue, as well as evidence of an inability to keep up with work requirements; this is consistent with a moderately severe disability of muscle group XXI. CONCLUSIONS OF LAW 1. The criteria for dismissal of the appeal for entitlement to an effective date prior to March 17, 2011 for service connection for right hip strain based on clear and unmistakable error in a June 15, 2000 rating decision have been met. 38 U.S.C. §§ 5109A(a), 7105 (2012); 38 C.F.R. §§ 3.105(a), 3.156 (b) (2018). 2. The criteria for dismissal of the appeal for entitlement to an effective date prior to March 17, 2011 for service connection for left hip strain based on clear and unmistakable error in a June 15, 2000 rating decision have been met. 38 U.S.C. §§ 5109A(a), 7105 (2012); 38 C.F.R. §§ 3.105(a), 3.156 (b) (2018). 3. The criteria for withdrawal of the appeal for service connection for arthritis by the Veteran have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). 4. The criteria for entitlement to service connection for fibromyalgia have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. § 3.303 (2018). 5. The criteria for an initial rating of 20 percent for costochondritis have been met; the criteria for a rating in excess of 20 percent have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.7, 4.20, 4.56, 4.73, Code 5321 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1994 to March 1999. The Veteran appeared before the undersigned Veterans Law Judge and provided testimony pertinent to her appeals at a videoconference hearing in August 2019. A transcript is in the record. As will be explained below, the Board will dismiss the appeals for earlier effective dates for service connection for the Veteran’s right hip strain and left hip strain based on CUE in a June 15, 2000 rating decision. However, the matters of entitlement to an effective date prior to March 17, 2011 for service connection for right hip strain based on CUE in an October 20, 2006 rating decision and entitlement to an effective date prior to March 17, 2011 for service connection for left hip strain based on CUE in an October 20, 2006 rating decision are referred to the regional office (RO) for development and initial consideration. The Veteran and her representative are invited to submit supporting argument to the RO in these matters. CUE (38 C.F.R. § 3.105) 1. Entitlement to an effective date prior to March 17, 2011 for service connection for right hip strain based on CUE in a June 15, 2000 rating decision 2. Entitlement to an effective date prior to March 17, 2011 for service connection for left hip strain based on CUE in a June 15, 2000 rating decision The Veteran contends that she is entitled to effective dates from the day after discharge for service connection for her right hip strain and left hip strain based on CUE in the June 15, 2000 rating decision that first considered these matters. By law, a decision by the Department of Veterans Affairs (VA) is subject to revision on the grounds of clear and unmistakable error. If the evidence establishes the error, the prior decision shall be reversed or revised. 38 U.S.C. § 5109A(a). VA regulations add that previous determinations which are final and binding, including decisions of service connection, will be accepted as correct in the absence of clear and unmistakable error. 38 C.F.R. § 3.105(a). In this matter, the record shows that the Veteran’s claim was initially denied in a rating decision dated June 15, 2000. This decision determined she had not submitted a well-grounded claim for service connection for bilateral hip pain. The Veteran was notified of this decision and provided her appellate rights in a June 2000 letter, but she did not initiate an appeal by submitting a notice of disagreement within the one-year period in which to appeal. In most instances, the June 2000 rating decision would then be considered final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.105(a), 3.156(b). However, the June 15, 2000 rating decision is not considered final due to the passage of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000). The VCAA eliminated the requirement of a well-grounded claim and in section 7(b)(1) required in certain cases that the RO readjudicate the Veteran’s claim “as if the [prior] denial or dismissal had not been made.” The VCAA provided that readjudication was necessary if the previous decision denying the claim became final during the period from July 14, 1999 to November 9, 2000, was based on a finding that the claim was not well grounded, and a request for readjudication was filed by the claimant or the Secretary of VA not later than two years after the date of enactment, i.e., before November 9, 2002. In this case, in May 2001, the RO notified the Veteran it was reconsidering the claim for service connection for bilateral hip pain based on the passage of the VCAA. The claim was readjudicated and denied on a de novo basis in an October 19, 2001 rating decision on the basis that the medical evidence of record failed to show a current diagnosed disability. Once again, the Veteran was mailed notification of the RO’s decision and her right to appeal in an October 2001 letter. She did not initiate an appeal by submitting a notice of disagreement. But, in the next several days and weeks after this decision, additional VA treatment records were added to the Veteran’s claims file in October 2001 and November 2001. These records include reports of bilateral hip pain on several occasions dating from 1999 to 2001. None of these records were cited by the October 19, 2001 rating decision or listed as evidence that was considered. Therefore, as new and material was received within a year of the October 19, 2001 rating decision, it is not final and the Veteran’s initial claim of service connection for bilateral hip pain remained pending. 38 C.F.R. § 3.156(b); Muehl v. West, 13 Vet. App. 159, 161 (1999) (holding that records constituting new and material evidence received within one year after RO decision rendered RO decision non-final); 38 C.F.R. § 3.400(q) (2018) (providing that, as to new and material evidence received within appeal period, “effective date will be as though the former decision had not been rendered”); see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011) (stating that to comply with the directive of 38 C.F.R. § 3.156 (b) that new and material evidence be treated as having been filed in connection with the pending claim, VA must evaluate submissions received during the relevant period and determine whether they contain new evidence relevant to a pending claim). It was not until an October 20, 2006 rating decision that RO once again considered the Veteran’s claim for service connection for bilateral hip pain, when it found that the claim remained denied because the evidence submitted was not new and material. The evidence said to have been considered included VA treatment records dating from June 2001, and the Board observes that the VA treatment records received in November 2001 date through August 2001. The Veteran was notified of this decision and provided her appellate rights in an October 2006 letter. Once again, she did not initiate an appeal by submitting a notice of disagreement within the one-year period provided by law. Although additional VA treatment records were received in September 2007, these do not show treatment for the hips, were not new and material, and did not require readjudication. Therefore, as neither the June 15, 2000 rating decision nor the October 19, 2001 rating decision was final, the October 20, 2006 rating decision is the first final decision on the Veteran’s initial claim for service connection for bilateral hip pain. Subsequently, the Veteran submitted a new claim for service connection for a bilateral hip disability as secondary to her service-connected knee disabilities on March 17, 2011. Service connection for right hip strain and left hip strain was granted in an April 2012 rating decision, which assigned an effective date of March 17, 2011. As noted at the August 2019 hearing, the Veteran and her representative contend that the basis for the earlier effective date is that the original June 15, 2000 denial contains CUE. The record shows that the May 2013 rating decision that denied entitlement to earlier effective dates did so on the basis that the June 2000 rating decision did not contain CUE. The May 2014 statement of the case also explains that the June 2000 rating decision does not have CUE. However, as noted above, the June 15, 2000 rating decision was not final. As further noted, CUE can only be raised in final decisions of the VA. Thus, as the Veteran’s entire argument for earlier effective dates is based on CUE in the June 15, 2000 rating decision that was never final, her claims lack legal merit and must be dismissed. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Once again, the Board invites the Veteran to submit argument pertaining to potential CUE in the first final denial of service connection for bilateral hip pain in the October 20, 2006 rating decision if she so wishes. The Board further observes that a CUE in that decision would have the same effect desired by a CUE in the June 15, 2000 rating decision, which would be to open the door to an effective date for service connection based on the Veteran’s original claim, and thus an effective date potentially (but not necessarily) as early as the March 7, 1999, day after her discharge from service. Service Connection The Veteran contends that her fibromyalgia is a continuation of the joint pains she experienced during active service. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. However, this method may be used only for the chronic diseases listed in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Fibromyalgia is not listed. In relevant part, 38 U.S.C. § 1154(a) (2012) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 3. Service connection for arthritis The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2018). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. For the veteran to withdraw an issue that is on appeal on the record during a Board hearing, the withdrawal must be 1) explicit, 2) unambiguous, and 3) done with a full understanding of the consequences of such action by the veteran. Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). In the present case, the Veteran, through her appearance at the August 2019 Board videoconference hearing, expressed her desire to withdraw the appeal of the issue of service connection for arthritis. 08/1204/2019, Hearing Transcript, at 2. The Veteran affirmed the withdrawal of the arthritis issue and was informed that no decision would be made and the issues would be dismissed. She also affirmed this statement. Based on the undersigned’s observations at the hearing, the Board that such withdrawal was explicit, unambiguous, and done with a full understanding of the consequences. Indeed, the Veteran and her accredited attorney representative showed no desire to continue the appeal for this issue. As such, the Board finds that there remains no allegations of errors of fact or law for appellate consideration since the withdrawal of the issue was an effective one. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. 4. Service connection for fibromyalgia The evidence includes the report of a March 2013 VA examination for fibromyalgia. This states the Veteran has a current diagnosis of fibromyalgia. The first requirement for service connection of medical evidence of a current disability has been met. A review of the service treatment records is negative for a diagnosis of fibromyalgia. However, these records do show the Veteran frequently complained of joint pains, particularly in her knees and, towards the end of service, her hips. The Veteran has consistently described symptoms that include joint pains during service. The Board finds that the second requirement for service connection of evidence of in-service incurrence has also been met. The final requirement to establish service connection is that of a causal relationship or nexus between the Veteran’s current diagnosis of fibromyalgia and the symptoms noted during service. The post-service evidence includes a July 2004 VA treatment record that notes a possible diagnosis of fibromyalgia. VA treatment records from 2005 continue to show assessments of possible fibromyalgia. A January 2005 VA treatment record notes the Veteran was told she may have fibromyalgia, but the care provider wanted more labs. This record adds there was no diagnosis at that time, but that fibromyalgia can cause diffuse pain like she experienced. Additional 2005 records continue to note a possible diagnosis of fibromyalgia. A March 2011 VA treatment record has an assessment of fibromyalgia, but was unclear if this was first diagnosed years ago in the military or after service at the VA. The matter of a nexus has been addressed by two VA doctors. In an October 2011 letter signed by the Veteran’s VA care provider, he states the Veteran provided him with medical records from her time in the Navy dating back to 1998. These document that she was treated at that time with patellofemoral syndrome, diffuse musculoskeletal pain thought to be due to fibromyalgia, hip and back pain, and costochondritis. She has suffered with all the above conditions ever since her military service and remains under treatment for them at the VA medical center. The March 2013 VA examination report says the Veteran’s condition began in 1997. The Veteran reports having pain all over her body and having been diagnosed with fibromyalgia in 2011 at the VA medical center. However, the examiner opined it was less likely than not the Veteran’s disability was incurred in or caused by service. The rationale noted the evidence showed suspicion for fibromyalgia six years after military discharge. There was evidence of joint pain in the bilateral lower extremities during service. However, fibromyalgia affects upper and lower extremities in addition to those systems. Furthermore, there was evidence of actual joint conditions during service and since discharge but not of fibromyalgia. Based on a lack of documentation of the condition’s presence during service, it was less likely related to service or to have occurred during 1994 to 1999. The Board recognizes that neither opinion is perfect, but perfect is not needed to grant service connection. 38 U.S.C. § 5107(b). When the October 2011 staff physician states the Veteran has been treated for diffuse musculoskeletal pain thought to be due to fibromyalgia since 1998, it is unclear if he is describing the medical record or providing an opinion. If he is describing the record, it is not entirely accurate, as there is no evidence that fibromyalgia was suspected until 2004. On the other hand, if providing an opinion, the VA physician he did not provide any rationale. The March 2013 examiner supports her opinion by noting that joint conditions other than fibromyalgia were diagnosed during service, implying these could provide a basis other than fibromyalgia for the Veteran’s in-service symptoms. But this examiner then adds that the negative opinion was based on lack of documentation of fibromyalgia during service without explaining why this would be necessary, as service connection can be warranted for a disease first diagnosed after discharge. See 38 C.F.R. § 3.303(d). The Board finds that as these opinions are in relative equipoise, all doubt must be resolved in favor of the Veteran, and the Board finds that a nexus between the Veteran’s current diagnosis and her symptoms during service has been established. 38 C.F.R. § 3.102. The final requirement for service connection has been met, and entitlement to service connection for fibromyalgia is established. Increased Rating 5. Entitlement to a rating in excess of 10 percent for costochondritis The Veteran contends that the 10 percent rating assigned to her service-connected costochondritis does not reflect the level of impairment that is caused by this disability. The evaluation of service-connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating criteria. 38 U.S.C. § 1155. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In addition, the entire history of the veteran's disability is also considered. Consideration must be given to the ability of the veteran to function under the ordinary conditions of daily life. 38 C.F.R. § 4.10. If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b).   The record shows that entitlement to service connection for costochondritis was granted in a May 2013 rating decision. A zero percent (noncompensable) rating was assigned, effective from March 17, 2011 via Diagnostic Code 5399-5321. The Veteran submitted a notice of disagreement with the zero percent rating, which initiated the current appeal. In determining an initial rating, the entire record from the effective date of service connection to the present is of importance in determining the proper rating of disability, and staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The rating code does not include an entry for costochondritis. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. As noted above, the RO has evaluated the Veteran’s costochondritis by analogy to the rating criteria for an injury to muscle group XXI, the muscles of respiration or thoracic muscle group. Under this rating criteria, a slight muscle injury is evaluated as zero percent disabling. Moderate injury is 10 percent disabling. Moderately severe or severe injury is 20 percent disabling. 38 C.F.R. § 4.73, Code 5321. For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement. 38 C.F.R. § 4.56(c). The Veteran’s current zero percent rating indicates her injury was evaluated as slight. Slight disability of muscles is typified by a simple wound of muscle without debridement or infection. The history and complaints will reveal service department record of superficial wound with brief treatment and return to duty, healing with good functional results, and no cardinal signs or symptoms of muscle disability. Objective findings should include a minimal scar, with no evidence of fascial defect, atrophy, or impaired tonus, and no impairment of function or metallic fragments retained in muscle tissue. 38 C.F.R. § 4.56(d)(1). In order to receive at least a 10 percent rating, the Veteran must have an injury to Muscle Group XXI of moderate or more severity. Moderate disability of muscles is signified by a through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. The service department record or other evidence of in-service treatment for the wound should show record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. Objective findings will include entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue, and some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56(d)(2). For moderately severe disability of muscles, the type of injury will be a through and through or deep penetrating wound by a small high velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. The service department record or other evidence should show hospitalization for a prolonged period for treatment of wound, as well as evidence of consistent complaints of cardinal signs and symptoms of muscle disability and, if present, evidence of inability to keep up with work requirements. Objective findings should include entrance and (if present) exit scars indicating track of missile through one or more muscle groups, and indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side. Tests of strength and endurance when compared with the sound side will demonstrate positive evidence of impairment. 38 C.F.R. § 38 C.F.R. § 4.56(d)(3). October 2011 VA treatment records were negative for chest pain from her costochondritis. She reported chronic pain all over but no chest pain or shortness of breath. The report of a February 2012 VA examination for muscle injuries states the Veteran had a history of a pulled muscle in her chest in 1996 or 1997. She now has mid-sternal and left-sided chest pain. The examiner identified the injured muscle group as Group XXI, which are the muscles of respiration; the thoracic muscle group. Both sides were affected. Her injury affected her muscle substance or function in that she experienced tenderness of the area just below her breasts. Both sides were affected. Her symptoms include occasional fatigue and pain. There was no loss of power, weakness, lowered threshold of fatigue, or impairment of coordination. She did not have muscle atrophy. A February 2012 VA treatment record shows the Veteran reported abdominal pain that would come and go for the past week. However, she denied shortness of breath and chest pain. A June 2012 private X-ray study of the Veteran’s ribs were normal, without evidence of a displaced rib fracture. A June 2012 letter from her VA care provider states she has been diagnosed with costochondritis, which is a condition that can cause chest pain. There was no imaging or laboratory testing available, and no cure. VA treatment records from April 2018 state the Veteran was negative for chest pain. She also denied chest pain in October 2018. Additional records from March 2019 show the Veteran has a medical history that includes costochondritis. However, she was again currently negative for chest pain. At the August 2019 hearing, the Veteran testified that she always has pain in the sternum and under her breasts. She was unable to do much strenuous work because if she did her pain would flare up worse than normal. She was unable to lift anything heavy. The Veteran stressed that she had pain on a daily and continuous basis. An additional letter from the Veteran’s VA care provider dated September 2019 states the Veteran’s costochondritis causes her daily chest pain and interferes with lifting more than 10 pounds. This negatively affected her work as a server and bartender. The Veteran had been on light duty with her employer for years, which impacted her performance and upward mobility in her position. The Board finds the Veteran’s reports of pain as confirmed on her February 2012 VA examination and in the June 2012 and September 2019 letters from her VA care provider demonstrates a moderately severe muscle disability of Group XXI, which supports a 20 percent rating. The Board observes that the Veteran’s disability is evaluated by analogy. There is no history of an injury due to a penetrating wound. Therefore, consideration of the criteria relating to penetrating wounds is inappropriate. However, the rating criteria states that consistent complaints of cardinal signs and symptoms of muscle disability and, if present, evidence of inability to keep up with work requirements supports a finding of moderately severe injury. The Veteran has consistently reported chest pain, and fatigue has also been reported. Although pain is not shown on every visit to a VA care provider, the criteria requires only consistent complaints and not constant complaints. The Board finds that the record supports a finding of consistent complaints of chest pain, which the August 2019 testimony and September 2019 letter states is now constant. Furthermore, the September 2019 letter includes evidence of an inability to keep up with work requirements. This is consistent with Veteran’s vocational rehabilitation records, which have found her service-connected disabilities result in a handicap to her ability to be employed. This is in turn is consistent with a finding of a moderately severe injury. See 38 C.F.R. §§ 4.56(d)(3); 4.73, Code 5321. The Board has considered entitlement to an initial rating in excess of 20-percent. However, the rating criteria states that a 20 percent rating is appropriate for both moderately severe and severe disability. Therefore, the 20 percent rating is the highest possible rating under the rating criteria, and a finding of a severe disability under these criteria is of no benefit. See 38 C.F.R. § 4.73, Code 5321. The Board has also considered entitlement to a rating under a different rating code but finds that there is no code that is more appropriate. The February 2012 VA examiner specifically found that the injured muscle group was Group XXI, and the Board considers this competent medical evidence, gives it weight as to muscle group affected leading to the use of the appropriate diagnostic code. Indeed, given the location of the Veteran’s injury, which is the top of the ribcage just below the breasts, none of the other muscle groups of the torso are more appropriate, as they all involve functions and muscles outside of this region. As such, there is no basis for a rating in excess of 20 percent under the current or any other rating criteria. REASONS FOR REMAND 1. Service connection for instability of the right knee 2. Service connection for instability of the left knee 3. Entitlement to a rating in excess of 10 percent for a right knee disability. 4. Entitlement to a rating in excess of 10 percent for a left knee disability. 5. Entitlement to a rating in excess of 10 percent for right ankle disability. 6. Entitlement to a rating in excess of 10 percent for right hip strain. 7. Entitlement to a rating in excess of 10 percent for left hip strain. The record indicates that the Veteran’s most recent VA examinations of her service connected right ankle, knee and hip disabilities were conducted in March 2013. The Board notes that the questionnaires completed by her VA care provider were submitted in February 2016, but these do not include complete range of motion testing. At the August 2019 hearing, the Veteran testified that her right ankle disability had increased in severity since her 2013 VA examination. She also indicated her knee and hip symptoms had become worse. The Board observes that this testimony is consistent with her VA treatment records from 2018 and 2019. These show the Veteran stepped in a hole and fell in early 2018, which resulted in injuries to the joints on the left side of her body and physical therapy that primarily involved her left knee disability that continued throughout the year. She has not been afforded a VA examination since this injury. The Veteran is entitled to a new VA examination where there is evidence (including his/her statements) that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Given the age of her most recent VA examinations, her testimony, and the VA treatment records showing a recent injury and exacerbation to some of her service-connected disabilities, the Board finds she should be scheduled for a new VA examination to obtain an accurate assessment of her current level of disability. 38 C.F.R. § 3.327(a). The Veteran also contends she is entitled to service connection for right knee instability and left knee instability. Although service connection for patellofemoral syndrome of the right knee and patellofemoral syndrome of the left knee has already been established, these disabilities are evaluated by analogy to the rating criteria for traumatic arthritis, which provides for ratings based on limitation of motion. However, consideration will also be given as to whether separate ratings based on instability and limitation of motion are warranted. See VAOPGCPREC 9-98. Although to date the evidence does not include a finding of instability for either knee, given that the Veteran is to be afforded new VA examinations the Board finds these matters to be inextricably intertwined with the claims for increased ratings, and will defer consideration of the appeals for service connection for instability of each knee until the report of the new examination has been added to the record. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (stating that two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). These matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from March 2019 to the Present. 2. After completing #1, schedule the Veteran for a VA examination to assess the current nature and severity of her service-connected disabilities of the knees, hips, and right ankle. Range of motion of all of the above joints is to be reported in both active and passive movement, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in functional loss. a. The examiner is to state whether the Veteran has a current diagnosis of instability of the right knee and/or the left knee. If so, describe the degree of instability. b. Based upon a review of the medical records, the August 2019 testimony, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during the examination, state whether the Veteran experiences flare ups of his service-connected knees, hips, and/or right ankle disabilities, and how she characterizes the additional functional loss during a flare. c. If the Veteran describes experiencing flare ups, for each joint identify the: • frequency; • duration; • precipitating factors; and • alleviating factors. d. Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that during a flare up range of motion (flexion of the left and right knees) is additionally limited to 30 degrees. Please explain why or why not. e. Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that during a flare up the left and/or right disability is manifested by effusion and/or locking. f. Regarding the right ankle, based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that during a flare up range of motion (dorsiflexion) is additionally limited to less than 15 degrees. Please explain why or why not. g. Regarding the right ankle, based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that during a flare up range of motion (plantar flexion) is additionally limited to less than 30 degrees. Please explain why or why not. (Continued on the next page)   If the examiner cannot provide the requested opinions without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner’s lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board John L. Prichard 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.