Citation Nr: 20046522 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 15-10 015 DATE: July 13, 2020 REMANDED Entitlement to an increased rating for residuals of a left knee meniscectomy with Baker’s cyst, rated 10 percent disabling under Diagnostic Code (DC) 5259 from May 8, 2009, to September 30, 2010, and 20 percent disabling under DC 5258 from February 1, 2011, is remanded. Entitlement to service connection for a left ankle strain is remanded. REASONS FOR REMAND The Veteran served active duty service from September 1997 to January 1998; from August 2005 to December 2005; and from January 2009 to May 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO), which granted service connection for a left knee meniscal tear and assigned the initial 10 percent rating under DC 5259, for symptomatic removal of the semilunar cartilage. Thereafter, in March 2011 and September 2011 rating decision, the RO granted the Veteran a temporary total (100%) evaluation from October 1, 2010, to February 1, 2011, due to surgical convalescence following a left a knee meniscectomy and continuing the 10 percent rating thereafter. In a January 2015 rating decision, his left knee disability was increased to 20 percent, effective February 1, 2011. While the temporary total rating renders the claim moot for that timeframe of the appeal, the increased rating in January 2015 only constitutes a partial grant of the benefits sought on appeal; therefore, the issue remains on appeal and is for consideration by the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). In the July 2018 Board remand, the RO was requested to obtain any outstanding VA treatment record and ask the Veteran to identify and provide authorization to obtain any outstanding, relevant private treatment records. Also, to provide VA examinations for his disabilities. All outstanding VA treatment records were associated with the claims file. In February 2019, the RO requested for the Veteran to identify and provide authorization to obtain any outstanding, relevant private treatment records. Subsequently, in July 2019, the Veteran reported that all his medical care was provided by VA. In July 2019 the Veteran was provided an adequate and sufficient VA knee examination. The July 2019 VA ankle and knee examinations were inadequate as discussed below in the remand section. REASONS FOR REMAND 1. Entitlement to an increased rating for residuals of a left knee meniscectomy with Baker’s cyst, rated 10 percent disabling under DC 5259 from May 8, 2009, to September 30, 2010, and 20 percent disabling under DC 5258 from February 1, 2011, is remanded. In the June 2019 VA examination, it was noted that the examination was not conducted during a flare up, and the examination was medically consistent with his statements describing functional loss during flare up. The examiner noted that pain, weakness, fatigability or coordination significantly limit functional ability with flare ups. Additionally, In the January 2011 and March 2011 VA examinations, it was noted that moderate lateral tilting and subluxation of the patella without significant cartilage pathology. The Veteran is entitled to substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Here, the June 2019 VA examiner primarily noted that the examination was not conducted during a flare up and did not provide information and/or estimates about the functional impairment of the Veteran’s flare ups. Additionally, the January 2011 and March 2011 VA examinations does not indicate whether the noted lateral tilting and subluxation of the Veteran’s left knee is a separate knee disability or part of his meniscectomy residuals. The Board notes that separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology. See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004). Thus, a remand is necessary for a new examination to address the Veteran’s flare ups and lateral tilting and subluxation of his left knee. 2. Entitlement to service connection for a left ankle strain is remanded. In the June 2019 VA examination, the VA examiner opined that the Veteran’s left ankle strain was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner reasoned that there is a lack of evidence of left ankle injuries or complaints during service. Further, the Veteran injured his left ankle post-service on a hike per the December 22, 2009 VA examination. In the December 22, 2009 VA examination, it notes that the Veteran injured his left ankle on the same hike where he hurt his left knee while on “active duty.” This is corroborated in numerous VA treatment records where it consistently notes he sustained his left ankle injury on active duty. Here, the July 2019 VA examiner inaccurately concluded that the Veteran’s left ankle injury occurred post-service. Thus, a supplemental medical opinion is necessary. See Stegall, 11 Vet. App. at 268 The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of his left knee. The entire claims file and a copy of this remand must be made available to the examiner for review. All pertinent symptomatology and findings must be reported in detail. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the following: a. The March 2010 VA outpatient treatment record where it indicates the Veteran fell on or around March 2009, which resulted in chronic pain and swelling “when he walks a lot” and a feeling that his left knee “locks” when extended. He also reported weakness and worsened pain with squatting and use of the stairs. b. The January 2011 and March 2011 VA examinations where it notes moderate lateral tilting and subluxation of the patella without significant cartilage pathology. The examiner must address the following: a. The examiner must determine whether there would be additional functional impairment during flare-ups. The examiner should assess the additional functional during flare-ups in terms of the degree of additional ROM loss, if possible. If the Veteran indicates that he is not currently experiencing a flare-up at the time of the examination, the examiner should estimate any additional functional loss during flare-ups, if feasible. If it is not feasible to determine, even by estimation, the extent to which the Veteran experiences additional functional loss during flare-ups without resorting to speculation, the examiner must provide an explanation for why this is so. b. The examiner must determine if the Veteran’s reported left knee lateral tilting and subluxation is due to a separate knee condition or related to his meniscectomy residuals. In particular, the examiner is asked whether the Veteran’s left knee is manifested by recurrent subluxation or lateral instability and, if so, whether the condition is “slight,” “moderate,” or “severe.” 2. Provide the Veteran’s claims file to a qualified examiner to determine the etiology of the Veteran’s left ankle strain. The entire claims file and a copy of this remand must be made available to the examiner for review. A new examination(s) is only required if deemed necessary by the examiner. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the following: a. The December 2009 VA examination that notes the Veteran’s left ankle injury occurred during active duty. b. The March 2010 VA treatment record that notes the Veteran injured his left ankle while marching during active duty. c. The July 2010 VA treatment record that notes evidence of prior lateral and medial ankle sprains. The examiner must opine as to whether the Veteran’s left ankle strain is at least as likely as not (50 percent or greater probability) related to his in-service left ankle injury. The examiner must provide a complete rationale for his or her opinion(s) in the examination report. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Willoughby, Associate 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.