Citation Nr: 21065270 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 09-40 239 DATE: October 25, 2021 REMAND Entitlement to an increased rating in excess of 20 percent for postoperative residuals of osteochondritis dissecans with arthritis of the right knee for the period prior to October 2, 2020 and in excess of 30 percent for the period from October 2, 2020 through the present is remanded. REASONS FOR REMAND The Veteran served in the Army from August 1969 to April 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In February 2016, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This matter has a lengthy procedural history. In March 2016, the Board denied entitlement to an increased rating in excess of 20 percent for the Veteran's postoperative residuals of osteochondritis dissecans with arthritis. The Veteran appealed that denial to the United States Court of Appeals for Veterans Claims (Court). In response to an April 2017 Joint Motion for Partial Remand, the Court vacated and remanded the Veteran's claim to the Board, which in turn remanded the case for further development in June 2017. The case was returned to the Board and in a November 2017 decision, the Board again denied entitlement to an increased rating for postoperative residuals of osteochondritis dissecans with arthritis. The Veteran again appealed to the Court, and in response to a Joint Motion for Remand, the Court vacated and remanded the Veteran's claim in June 2018. In the Joint Motion for Remand, the parties agreed that the Board erred when it relied on the July 2017 VA examination because the examiner failed to opine whether pain could significantly limit functional ability during flare-ups or on repetitive use. Thus, the parties agreed that a remand for an adequate examination was necessary and the claim was again returned to the Board at which time it was remanded in November 2018 in order to obtain an updated VA examination in order to comply with the Joint Motion for Remand. Following an additional remand in July of 2020 for an additional VA examination, the Veteran's claim was increased to 30 percent effective October 2, 2020. As this represented less than a full grant of the benefit sought, the higher evaluation issue remained in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). After the case was returned to the Board, the Board again denied entitlement to an increased rating for either period in a February 2021 decision. The Veteran again appealed to the Court, and in response to an additional Joint Motion for Remand, the Court vacated and remanded the Veteran's claim in August of 2021. This case has now been returned to the Board and, unfortunately, an additional remand is necessary. More specifically, it was agreed upon in the most recent Joint Motion for Remand that "the Board failed to address arguments expressly raised by [Appellant's representative in an October 2018 submission" which included the argument that the Board should "consider whether it would be most appropriate to have the Veteran's right knee evaluated during a period of flare-up". In that regard, the Board recognizes that the Court has recognized that some conditions, by their inherent nature, wax and wane and accordingly are sometimes active and other times not. See Ardison v. Brown, 6 Vet. App. 405, 408 (1994). Here, the Veteran has at times reportedly not experienced flare-ups, including at his most recent October 2020 VA examination. As a contrasting example, the Veteran reportedly experienced flare-ups at his July 2017 and September 2019 VA examinations. Given the direct assertions made by the Veteran's representative and the agreed-upon findings made in the most recent Joint Motion for Remand, the Board cannot make a full-informed decision until this claim is remanded for an addendum VA opinion and examination that, ideally takes place during a period of flare-up. This remand and the accompanying directives are further necessitated for one additional reason. In this case, the Veteran is currently rated at 20 percent for his right knee disability for the period prior to October 2, 2020 and at 30 percent for the period from October 2, 2020 through the present under Diagnostic Code 5003-5260. However, the criteria for Diagnostic Code 5003, as well as some other Diagnostic Codes pertaining to the knee, were revised during the pendency of this appeal, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). Because the amendments have a specified effective date without provision for retroactive application, they may not be applied prior to the effective date. As of that effective date, the Board must apply whichever version of the rating criteria is more favorable to the Veteran. 38 U.S.C. § 5110; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Given these regulatory changes, the Board finds that affording the Veteran the opportunity to attend a new VA examination is also necessary to ensure that the Veteran is rated appropriately in accordance with the laws in place at this time. The matter is REMANDED for the following actions: 1. Obtain any outstanding relevant VA treatment records and associate them with the claims file. 2. Schedule the Veteran for an examination to assess the current severity of his service-connected right knee disability that, if at all possible, takes place during a period of flareup. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. Even if the examination takes place during a period of flareup, 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. The examiner is specifically asked to opine whether there is additional limitation of motion upon flare-ups or on repetitive use. To the extent possible, the examiner should identify any symptoms and functional impairments due to the right knee disability alone and discuss the effect of the Veteran's right knee condition 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 examination should also address whether there is reduced muscle strength, an antalgic gait, and/or knee locking. 3. Obtain an addendum opinion from an appropriate VA clinician. The entire claims file, including a complete copy of this remand, should be made available to and be reviewed by the clinician, and it should be confirmed that such records were available for review. Following a review of the evidence of record, to include the Veteran's lay statements, the clinician should reconcile, to the extent possible, the periods when the Veteran reportedly did and did not experience flareups as well as any other fluctuations in symptomology and/or discrepancies in the medical evidence of record. 4. Thereafter, readjudicate the claim, to include consideration of whether separate rating(s) are warranted under a different diagnostic code. If the benefits sought on appeal remain denied, issue a supplemental statement of the case to the Veteran and his representative. Then return the appeal to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. 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.