Citation Nr: 21062230 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 15-17 752 DATE: October 6, 2021 REMANDED Entitlement to an initial disability rating in excess of 10 percent for a left knee strain and chondromalacia is remanded. Entitlement to an initial disability rating in excess of 10 percent for right knee instability is remanded. Entitlement to an initial disability rating in excess of 10 percent for right knee strain and chondromalacia is remanded. Entitlement to an initial disability rating in excess of 10 percent for left knee instability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1976 to August 1996. These matters came before the Board of Veterans' Appeals ("Board") on appeal from a September 2010 rating decision of the Department of Veterans Affairs ("VA") Regional Office ("RO"). The Veteran timely appealed the September 2010 rating decision to the Board and sought higher rating in excess of 10 percent for the service-connected right knee strain and chondromalacia, in excess of 10 percent for left knee strain and chondromalacia, in excess of 10 percent for right knee instability, and in excess of 10 percent for bilateral hearing loss. Subsequently, in an April 2020 rating decision, the RO increased the disability rating to 20 percent for the service-connected bilateral hearing loss. The Board remanded these matters in July 2018. Subsequently, in its August 2020 decision, the Board granted a separate initial disability rating of 10 percent for left knee instability and denied the initial disability rating in excess of 10 percent for the service-connected right knee strain, in excess of 10 percent for left knee strain and chondromalacia, in excess of 10 percent for right knee instability, and in excess of 20 percent for bilateral hearing loss. The Veteran timely appealed the Board decision pertaining to bilateral knee conditions to the United States Court of Appeals for Veterans Claims ("CAVC"). However, he did not appeal the denial of initial disability rating in excess of 20 percent for the service-connected bilateral hearing loss. In May 2021, CAVC granted a Joint Motion for Partial Remand ("JMPR") by the parties (the Veteran and the Secretary of VA) and remanded part of the August 2020 Board decision pertaining to bilateral knee conditions, including instability, strain, and chondromalacia for readjudication. 1. Entitlement to an initial disability rating in excess of 10 percent for a left knee strain and chondromalacia is remanded. 2. Entitlement to an initial disability rating in excess of 10 percent for right knee instability is remanded. 3. Entitlement to an initial disability rating in excess of 10 percent for right knee strain and chondromalacia is remanded. 4. Entitlement to an initial disability rating in excess of 10 percent for left knee instability is remanded. In the May 2021 JMPR, the parties agreed that the Board erred in relying on inadequate VA medical examinations because the June 2010 and June 2014 VA medical examinations failed to provide range of motion (ROM) estimates of the bilateral knees on active and passive motion and with weight-bearing and non-weight-bearing as required by the Court's holding in Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). The parties also agreed that the October 2019 examiner did test ROM on both active and passive motion and found there was no pain on non-weight bearing; however, the examiner provided no ROM estimates for pain on weight bearing. Additionally, the parties agreed that during the June 2010 VA examination, the examiner did not provide measurement of loss of ROM as result of pain during flare-ups as required by the Court's holding in DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Furthermore, the parties also agreed that a remand is warranted of the claim for an increased rating higher than 10 percent for bilateral knee instability because while finding that the Veteran's right knee instability was slight, the Board failed to adequately explain its understanding of the terms "slight," "moderate," and "severe" as found in 38 C.F.R. § 4.71a, Diagnostic Code 5257. Finally, the parties agreed that a remand is warranted to obtain a retrospective examination and opinion that adequately assesses the additional functional loss or limitation of motion of bilateral knees during flare-ups, on active and passive motion, and with weight-bearing and non-weight-bearing. See Chotta v. Peake, 22 Vet. App. 80, 85 (2008) (holding that VA's duty to assist may include obtaining a retrospective medical opinion). Consequently, the Board finds that a remand is warranted to comply with JMPR, and retrospective medical opinion must be obtained that adequately assesses the severity of the Veteran's bilateral knee disability from the date of the claim October 16, 2009 to the present. Moreover, the Board notes that, effective February 7, 2021, certain portions of 38 C.F.R. § 4.71a, which provide the ratings schedule for disabilities of the musculoskeletal system, were revised. Specific to the Veteran's case, the rating criteria for Diagnostic Code 5257, which contemplates recurrent subluxation or lateral instability of the knee, were changed. In this regard, the Veteran is currently in receipt of two 10 percent ratings for instability of both knees under this diagnostic code. Therefore, on remand, the VA examiner is also asked to provide an opinion whether the Veteran has any condition under the new diagnostic code 5257, including any ligament tear (repaired or unrepaired) causing instability or recurrent subluxation, or a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation. The matters are REMANDED for the following action: 1. Schedule the Veteran for a new VA examination to evaluate his bilateral knee conditions, including instability, strain, and chondromalacia. Then, forward the claims file and a copy of this remand to the examiner for an opinion. 2. After reviewing the claims file, copy of this remand and the May 2021 JMPR, the examiner should address the following: (a) The examiner should test the Veteran's bilateral knee for range of motion limitation and pain during active motion, passive motion, and with weight-bearing and non-weight-bearing. If such testing cannot be accomplished, an explanation must be provided. The examiner should also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the functional loss and additional loss of ROM during flare-ups or when used repeatedly over a period of time. (b) Provide a retrospective medical opinion, as best as can be ascertained from the Veteran's self-report, as well as from clinical records and other evidence of record, estimating any additional degrees of limitation of range of motion caused by functional loss during flare-ups or after repeated use of bilateral knee from the date of the claim October 16, 2009 to the present. In doing so, the examiner must review the prior VA examination reports (from June 2010, June 2014, and October 2019), and based on the information therein, provide the requested findings for each examination undertaken during the pendency of the appeal. (c) In assessing the stability of bilateral knees during the pendency of appeal, the examiner should describe the level of severity of recurrent subluxation or lateral instability as "slight," "moderate," or "severe"; along with an explanation of reasons of choosing a particular level of severity, and what sort of additional impairment the examiner expects to see for the next higher level. In this regard, the examiner should review the August 2021 letter from a private physician Dr. Orcutt, who has been treating the Veteran since June 2011, and stated that the Veteran's pain has increased such that he needs cortisone injections every month. See document associated with the claims file with entry dated 08/21/2021, titled "Medical Treatment Record Non-Government Facility." (d) The examiner should also provide an opinion whether the Veteran has any condition under the new diagnostic code 5257 (effective February 7, 2021), including any ligament tear (repaired or unrepaired) causing instability or recurrent subluxation, or a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation. A complete rationale for the opinions rendered must be provided. If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must state this and provide any information needed to make an opinion, if possible. 3. Thereafter, if the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tariq, Nadeem, 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.