Citation Nr: 21064344 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 14-42 861 DATE: October 19, 2021 REMANDED Entitlement to a rating in excess of 10 percent for right knee patellofemoral syndrome with patellar tendinitis prior to January 21, 2016 due to limitation of flexion is remanded. Entitlement to a rating in excess of 30 percent for status post right total knee replacement from March 1, 2017 is remanded. Entitlement to a rating in excess of 10 percent for left knee patellofemoral syndrome with patellar tendinitis due to limitation of flexion is remanded. Entitlement to a rating in excess of 20 percent for left knee patellofemoral syndrome with patellar tendinitis from July 5, 2019 due to subluxation is remanded. Entitlement to a total disability rating for individual unemployability due to service-connected disability (TDIU) prior to December 21, 2016 is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1966 to February 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to a rating in excess of 10 percent for right knee patellofemoral syndrome with patellar tendinitis prior to January 21, 2016 due to limitation of flexion is remanded. Entitlement to a rating in excess of 30 percent for status post right total knee replacement from March 1, 2017 is remanded. Entitlement to a rating in excess of 10 percent for left knee patellofemoral syndrome with patellar tendinitis due to limitation of flexion is remanded. Entitlement to a rating in excess of 20 percent for left knee patellofemoral syndrome with patellar tendinitis from July 5, 2019 due to subluxation is remanded. VA's intent is that the claims pending prior to the effective date will be considered under both the old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. If the revised version of regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5510 (g) can be no earlier than the effective date of that change. Since, the Veteran's last VA examination in July 2019 VA amended its regulations governing musculoskeletal. On February 7, 2021, changes were made to DC 5257 regarding recurrent subluxation and lateral instability of the knee. Here, the Veteran has received a 20 percent rating for left knee subluxation under the old rating criteria. The July 2019 VA examination did not address these regulatory changes. Thus, a remand is needed to provide the Veteran with a VA examination that addresses the revised rating criteria for the knee. Further, since the July 2019 VA examination the Veteran's treatment records show that his symptoms have increased in severity. In 2019, at the examination it was determined that both knees were stable, and the Veteran only utilized a cane. The following year, in March 2020, the Veteran reported incidents involving both knees buckling and reported the use of a walker in addition to his cane. See March 2020 East Orange VAMC. The Veteran also reported that his private orthopedic surgeon wanted to redo his right knee replacement. Given the documented reports of worsening, a remand is warranted for a VA examination to determine the current severity of his bilateral knees. See Snuffer v. Gober, 10 Vet. App. 400 (1997). At the July 2019 VA examination, the VA examiner also determined that the Veteran had a history of bilateral knee recurrent subluxation and lateral instability that was moderate. At the examination no joint instability was observed for either knee. Unfortunately, upon review of the treatment records there is insufficient information to determine when such impairment arose. Thus, a retrospective opinion is needed. Entitlement to a TDIU prior to December 21, 2016 is remanded. A decision on the remanded issues could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). Thus, a remand is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination, to determine the current severity of his bilateral knee disability. The claims file and a copy of this remand must be made available to and reviewed by the examiner. All indicated tests should be performed and all findings should be reported in detail. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. 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. The examiner must address whether the Veteran has: a) an unrepaired or failed repair of complete ligament tear causing persistent instability, b) a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability; c) a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, of failed repair) causing persistent instability; d) a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair; or e) a diagnosed condition involving the patellofemoral complex with recurrent instability without surgical repair. The examiner should also address whether the Veteran is prescribed a brace and/or an assistive device (e.g., cane(s), crutch(es), walker). If there is recurrent subluxation and/or lateral instability, assess whether it is characterized as slight, moderate, or severe. If it is not possible to provide an opinion 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). 2. Obtain a retrospective opinion as to the nature and severity of the Veteran's bilateral knee disability from March 18, 2011 to July 4, 2019. The timeframe between the Veteran's VA examinations. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail. An explanation for all opinions expressed must be provided. In addition, the examiner must do the following: a) elicit detailed statements from the Veteran regarding his bilateral knee symptoms. Identify all symptoms attributable to the service-connected bilateral knee instability, to include whether there is any subluxation, instability, giving way, locking, effusion, or other associated symptomatology. If the Veteran did not experience these symptoms at any point during the applicable time period, indicate when the symptoms started or when they improved. b) Assess the severity of each symptom, and specifically note whether the Veteran's instability or other impairment is characterized as slight, moderate, or severe. In providing this information, elicit statements from the Veteran regarding his symptom history and review the treatment records. If it is not possible to provide an opinion 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). DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Smith, 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.