Citation Nr: 21062399 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 15-09 624 DATE: October 7, 2021 REMANDED Entitlement to an increased rating for a service-connected right knee disability, to include whether a separate rating under Diagnostic Code (DC) 5257 is warranted, is REMANDED. REASONS FOR REMAND The Veteran served honorably in the United States Navy from April 1975 to April 1979. Upon review of the record, the Board concludes that further evidentiary development is necessary. Although the Board sincerely regrets this delay and is appreciative of the Veteran's service to his country, a remand is necessary to ensure VA provides the Veteran with appropriate assistance in developing his claim prior to final adjudication. Entitlement to an increased rating for service-connected right knee disability, to include whether a separate rating under Diagnostic Code (DC) 5257 is warranted, is remanded. In May 2013, the Veteran submitted a VA Form 21-526EZ. Therein, the Veteran initiated his claim for an increased rating for a right knee synovitis disability. In August 2013, the Veteran underwent a VA examination that addressed the severity of his service-connected right knee chronic synovitis. At that time, the Veteran reported that, "(o)ccasionally, over the past 2 years, his right knee will lock for no reason. It will release after a while." The examiner noted that there was no evidence or history for patellar subluxation / dislocation. In March 2015, the Veteran submitted a VA Form 9. Therein, the Veteran posited that, "I now have to wear a brace on both knees because my knees want to hyper-extend & have no control of my walking when this happens." In March 2018, the Veteran's treatment notations from the Sky Lakes Medical Center were associated with the claims file. Upon review, the records do note that the Veteran endured progressive imbalance and loss of dexterity of his legs. In March 2018, the Veteran supplied sworn testimony to the undersigned Veterans' Law Judge (VLJ). At that time, the Veteran testified that his right knee would hyper-extend backwards on occasion. The Veteran testified that, after hyperextension, he could not put weight on the right knee. In April 2019, the Veteran underwent a VA examination that considered the current severity of the service-connected right knee disability. The examiner noted diagnoses for right knee ostearthritis and synovitis. At that time, the Veteran reported that, "he has pain in the right knee and at times the knee hyperextends when he is trying to walk." The examiner reported normal right knee stability with no effusion in the joint. The examiner did not report a history of right knee recurrent patellar dislocation, "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or another tibial and/or fibular impairment. In November 2019, the Board addressed the Veteran's claim for a rating in excess of 10 percent for the service-connected right knee chronic synovitis. At that time, the Board found that recurrent subluxation and lateral instability were not competently identified by the evidence of record. The Board acknowledged that the Veteran was competent to report the daily symptoms that accompany his service-connected right knee chronic synovitis. However, the Board found that identifying the current severity of right knee synovitis, under the applicable VA criteria, fell outside the realm of common knowledge of a lay person. In October 2020, the Court of Appeals for Veterans' Claims (Court) issued a joint motion for remand (JMR). The Court noted that the Veteran reported hyperextension during the claim period, and that subluxation was identified during the August 2013 VA examination. The Court remanded the Veteran's claim for the Board to provide an adequate reasons and bases for its determination as to whether a separate rating under DC 5257 was warranted. In March 2021, the Board addressed the Veteran's claim for an increased rating for the service-connected right knee disability. At that time, in light of the Court's JMR, the Board remanded the claim to the agency of original jurisdiction (AOJ) to obtain a new VA examination report that addressed the severity of the Veteran's service-connected right knee disability. The Board directed the examiner to address the nature and severity of any subluxation and/or lateral instability that was caused by the Veteran's service-connected right knee disability. . In June 2021, the Veteran underwent a VA examination that addressed the severity of the service-connected right knee disability. The Veteran reported that his right knee hyperextends, which included accompanying pain. Because of his service-connected right knee, the Veteran reported that he could not endure prolonged walking, standing, or sitting. The Veteran reported that right knee hyperextension occurred during walking. The examiner noted that the Veteran reported a history of right knee instability or recurrent subluxation. However, the examiner relayed that there was no recurrent subluxation or persistent instability. The examiner reported that the Veteran did not demonstrate right knee ankylosis, patellar instability, tibia or fibular impairment, or meniscal impairments. The Veteran reported regular use of a cane, walker, and electric scooter for normal locomotion. The examiner noted that, "(a)ll of the above assistive devices are prescribed for the veteran because of his back and cervical spine condition. The 4 point cane does provide additional stability for his knee if he is walking." The examiner remarked that, "(t)he diagnosis of bilateral osteoarthritis is not included in the diagnosis section only because it is not related to the claimed condition of right knee chronic synovitis." Ultimately, the Board concludes that the June 2021 VA examiner did not address the Veteran's competent reports of the service-connected right knee disability's hyperextension. Additionally, the examiner did not specifically address the severity of the Veteran's osteoarthritis during the claim period. Consequently, the Board concludes that 2021 examination report is not adequate for this analysis. On remand, the AOJ should secure a VA examination report that addresses the Veteran's contention on the severity or the service-connected right knee disability, to include the reported, recurrent subluxation. Additionally, the examiner should address the current severity of any right knee identified, to include osteoarthritis. Consequently, the matter is REMANDED to the agency of original jurisdiction (AOJ) for the following action: 1. The AOJ should secure the appropriate VA knee examination to ascertain the severity and manifestations of the Veteran's service-connected right knee disability during the claim period, on and after May 24, 2013. Access to the VBMS and Legacy Content Manager electronic claims files must be made available to the examiner for review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examination should include a statement about the effect(s) of the Veteran's service-connected right knee disability on the Veteran's occupational functioning and daily activities. The VA examiner should provide a complete rationale for any opinions provided. In order to comply with the Court's decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the right knee examination must include range of motion testing in the following areas: (a) Active motion; (b) Passive motion; (c) Weight-bearing; and (d) Nonweight-bearing. If the VA spinal examiner is unable to conduct all the required testing, or concludes that certain aspects of the required testing are not necessary or are not relevant for the Veteran's right knee disability, he or she should clearly explain why that is so. 2. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the Veteran's increased rating issue on appeal. If the benefit(s) sought are not granted, the AOJ must issue a Supplemental Statement of the Case (SSOC) and allow the Veteran and his representative an opportunity to respond. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board RLBJ, 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.