Citation Nr: 20002136 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 10-31 119 DATE: January 9, 2020 REMANDED Entitlement to a rating in excess of 30 percent prior to February 5, 2018, for a left knee manifested by tibia and fibula impairment, for a compensable rating for the period from February 5, 2018, to June 8, 2018, and for a rating in excess of 30 percent after June 8, 2018, is remanded. Entitlement to a compensable rating prior to February 5, 2018, for a left knee manifested by limitation of flexion, for a rating in excess of 30 percent for the period from February 5, 2018, to June 8, 2018, and for a compensable rating after June 8, 2018, is remanded. Entitlement to a compensable rating prior to February 5, 2018, for a left knee manifested by limitation of extension, for a rating in excess of 50 percent for the period from February 5, 2018, to June 8, 2018, and for a compensable rating after June 8, 2018, is remanded. Entitlement to a compensable rating prior to February 5, 2018, for a left knee manifested by instability, for a rating in excess of 30 percent for the period from February 5, 2018, to June 8, 2018, and for a compensable rating after June 8, 2018, is remanded. Entitlement to a rating in excess of 30 percent prior to February 5, 2018, for a right knee manifested by tibia and fibula impairment, for a compensable rating for the period from February 5, 2018, to June 8, 2018, and for a rating in excess of 30 percent after June 8, 2018, is remanded. Entitlement to a compensable rating prior to February 5, 2018, for a right knee manifested by limitation of flexion, for a rating in excess of 30 percent for the period from February 5, 2018, to June 8, 2018, and for a compensable rating after June 8, 2018, is remanded. Entitlement to a compensable rating prior to February 5, 2018, for a right knee manifested by limitation of extension, for a rating in excess of 40 percent for the period from February 5, 2018, to June 8, 2018, and for a compensable rating after June 8, 2018, is remanded. Entitlement to a compensable rating prior to February 5, 2018, for a right knee manifested by instability, for a rating in excess of 30 percent for the period from February 5, 2018, to June 8, 2018, and for a compensable rating after June 8, 2018, is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from August 1979 to December 1979 and from October 1980 to November 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2007 rating decision by the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2011, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The issues remaining on appeal were remanded for additional development in April 2013 and September 2017. A subsequent August 2018 rating decision established a separate rating for a left knee disability manifested by limitation of extension with a 50 percent rating effective from February 5, 2018, and a 0 percent rating after June 8, 2018, a separate rating for a right knee disability manifested by limitation of extension with a 40 percent rating effective from February 5, 2018, and a 0 percent rating after June 8, 2018, a separate rating for a left knee disability manifested by instability with a 30 percent rating effective from February 5, 2018, and a separate rating for a right knee disability manifested by limitation of extension with a 30 percent rating effective from February 5, 2018. A June 2019 rating decision established separate 30 percent ratings for left and right knee disabilities manifested by limitation of flexion effective from February 5, 2018. The issues for appellate review have been accordingly revised. An October 2019 rating action also noted the amputation rule, 38 C.F.R. § 4.68, was applicable to the multiple evaluations involving the knees for the period from February 5, 2018, to June 5, 2018. 1. Entitlement to a rating in excess of 30 percent prior to February 5, 2018, for a left knee manifested by tibia and fibula impairment, for a compensable rating for the period from February 5, 2018, to June 8, 2018, and for a rating in excess of 30 percent after June 8, 2018, is remanded. 2. Entitlement to a compensable rating prior to February 5, 2018, for a left knee manifested by limitation of flexion, for a rating in excess of 30 percent for the period from February 5, 2018, to June 8, 2018, and for a compensable rating after June 8, 2018, is remanded. 3. Entitlement to a compensable rating prior to February 5, 2018, for a left knee manifested by limitation of extension, for a rating in excess of 50 percent for the period from February 5, 2018, to June 8, 2018, and for a compensable rating after June 8, 2018, is remanded. 4. Entitlement to a compensable rating prior to February 5, 2018, for a left knee manifested by instability, for a rating in excess of 30 percent for the period from February 5, 2018, to June 8, 2018, and for a compensable rating after June 8, 2018, is remanded. 5. Entitlement to a rating in excess of 30 percent prior to February 5, 2018, for a right knee manifested by tibia and fibula impairment, for a compensable rating for the period from February 5, 2018, to June 8, 2018, and for a rating in excess of 30 percent after June 8, 2018, is remanded. 6. Entitlement to a compensable rating prior to February 5, 2018, for a right knee manifested by limitation of flexion, for a rating in excess of 30 percent for the period from February 5, 2018, to June 8, 2018, and for a compensable rating after June 8, 2018, is remanded. 7. Entitlement to a compensable rating prior to February 5, 2018, for a right knee manifested by limitation of extension, for a rating in excess of 40 percent for the period from February 5, 2018, to June 8, 2018, and for a compensable rating after June 8, 2018, is remanded. 8. Entitlement to a compensable rating prior to February 5, 2018, for a right knee manifested by instability, for a rating in excess of 30 percent for the period from February 5, 2018, to June 8, 2018, and for a compensable rating after June 8, 2018, is remanded. The Veteran contends that higher ratings are warranted for his service-connected left and right knee disabilities. The Board notes that for the periods prior to February 5, 2018, and after June 8, 2018, the Veteran’s left and right knee disabilities were evaluated under the criteria for diagnostic 5262, impairment of the tibia and fibula, and that during the interim period separate ratings were assigned under the criteria for diagnostic codes 5257, 5260, and 5261, for disabilities manifested by instability and limitation of flexion and extension. Pertinent VA-generated evidence was added to the appellate record since the August 2018 supplemental statement of the case. Reference is also made to an October 2019 rating decision indicating that duty to assist errors had been found during higher level review for limitation of flexion for the left and right knee disabilities. It was noted that the issues would be developed for a new VA examination. A November 2019 VA request for examination noted an in-person examination was required to complete a disability benefits questionnaire (DBQ). Although additional medical opinions were provided in November 2019 and December 2019, there is no indication a complete examination was conducted. No explanation was provided. As such, further development is required for adequate determinations. The matters are REMANDED for the following action: 1. Appropriate action should be taken to obtain a complete copy of any disability benefits questionnaire (DBQ) completed in November 2019, as well as any other pertinent VA treatment records created since December 2, 2019. 2. If a complete DBQ report from November 2019 is not obtained, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left and right knee disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including all evidence added to the record since the August 2018 supplemental statement of the case. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his attorney a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Douglas 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.