Citation Nr: 21063953 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-50 277 DATE: October 18, 2021 REMANDED Entitlement to an evaluation in excess of 10 percent for right knee arthritis is remanded. Entitlement to a separate rating in excess of 10 percent for right knee lateral patellar instability is remanded. Entitlement to a separate rating in excess of 20 percent for right knee meniscal tear is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1989 to January 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision. In an August 2017 rating decision, a 10 percent evaluation was granted effective March 16, 2012, for right knee arthritis. In a July 2020 rating decision, a separate 10 percent evaluation was granted for right knee lateral patellar instability and a separate 20 percent evaluation was granted for right knee meniscal tear, each effective March 5, 2019. The Veteran is presumed to be seeking the maximum benefit allowed by law and regulation, and therefore the additional assignment of benefits is not considered to have resolved his claims. AB v. Brown, 6 Vet. App. 35 (1993). The Veteran testified before a Decision Review Officer (DRO hearing) at the Agency of Original Jurisdiction (AOJ) in November 2018. A transcript of the hearing is included in the electronic claims file. The Board then remanded these matters for additional development in October 2019. 1. Entitlement to an evaluation in excess of 10 percent for right knee arthritis is remanded. 2. Entitlement to a separate rating in excess of 10 percent for right knee lateral patellar instability is remanded. 3. Entitlement to a separate rating in excess of 20 percent for right knee meniscal tear is remanded. Following the issuance of a supplemental statement of the case (SSOC) and certification of the appeal to the Board in July 2020, additional pertinent evidence was added to the record, to include an October 2020 VA knee examination report that was developed by VA. Neither the Veteran nor his representative waived review of this evidence. 38 U.S.C. § 7105(e); 38 C.F.R. § 20.1304(c). Thus, a remand is required so that a SSOC may be issued with consideration of all the evidence of record with regard to the claims on appeal. In addition, as there has not been substantial compliance with the Board's October 2019 previous remand directives regarding these increased rating issues, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board instructed the AOJ to obtain an examination that complied with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). In the October 2020 VA examination report, the Veteran described right knee flare-ups that were severe, occurred 3-4 times a month, lasted hours-days, were precipitated by standing or sitting too long, and were alleviated by use of brace and pain medications. The examiner then simply marked no as to whether pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-ups. It was further noted that the examination was not being conducted during a flare-up and that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during flare-up. To comply with Correia and Sharp as well as to address the revised rating criteria pertaining to knee disabilities under 38 C.F.R. § 4.71a, Diagnostic Code 5257 (effective February 7, 2021), a new VA examination is required. Here, the October 2020 VA examination report does not contain passive range of motion measurements as well as an adequate discussion of estimated functional loss related to flare-ups. On remand, the AOJ should afford the Veteran yet another VA examination to determine the current severity of his service-connected right knee disabilities, specifically to include all required range of motion testing and estimated functional loss related to flare-ups. See Correia v. McDonald, 28 Vet. App. 158 (2016); see also Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Evidence of record further reflects that the Veteran received VA medical treatment for his service-connected right knee disabilities from Columbia VAMC. As evidence of record only includes treatment records dated up to February 2021 from that facility, all pertinent VA treatment records should be obtained and properly associated with the record. 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following actions: 1. Obtain updated treatment records pertaining to the Veteran's service-connected right knee disabilities from Columbia VAMC for the time period from February 2021 to the present and associate them with the record. 2. Schedule the Veteran for an examination of the current severity of his service-connected right knee disabilities. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner is requested to test the range of motion (providing range of motion measurements in degrees) for the right knee on active motion, passive motion, weight-bearing, and nonweight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and then estimate the Veteran's functional loss due to flares based on all the evidence of record, including the Veteran's lay assertions, or explain why he/she could not do so. Estimated ranges of motion during flare-ups should be provided, if feasible, even if the Veteran is not experiencing a flare-up during the examination. The examiner must also include a discussion of any specific facts that cannot be determined if unable to opine without speculation. In doing so, the examiner should acknowledge and discuss the findings in the August 2012, August 2017, October 2017, February 2019, September 2019, January 2020, and October 2020 VA examination reports/medical opinions. To the extent possible, the examiner should identify any symptoms and functional impairments due to the right knee disabilities alone and discuss the effect of the Veteran's right knee disabilities on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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 Veteran is hereby advised that failure to report for any scheduled VA examination without good cause shown may have adverse effects on his claims. 38 C.F.R. § 3.655. 3. After completing the above actions and any other necessary development, the claims on appeal must be re-adjudicated, taking into consideration all relevant evidence associated with the record since the July 2020 SSOC as well as the recent amendments to the regulations used in evaluating the musculoskeletal system (to include the knees). See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). If any benefit on appeal remains denied, a SSOC must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. D. Deane, 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.