Citation Nr: 21066017 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 20-14 469 DATE: October 28, 2021 REMANDED Entitlement to an evaluation in excess of 10 percent for lateral instability of the left knee is remanded. REASONS FOR REMAND The Veteran had active service from July 1999 to July 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2019 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. Upon review, the Board finds that additional development is needed prior to adjudication of the issue on appeal. The Veteran was afforded a VA examination in connection with his claim for an increased evaluation for his service-connected left knee disability in January 2019. However, in light of a decision issued by the United States Court of Appeals for Veterans Claims (Court), a remand is required. Specifically, the Court held that 38 C.F.R. § 4.59 requires VA examinations to include joint testing for pain on both active and passive range of motion, as well as with weight-bearing and nonweight-bearing. Correia v. McDonald, 25 Vet. App. 158 (2016). In this case, the VA examination report did not include all of those findings. Moreover, during the October 2021 hearing, the Veteran testified that his disability has worsened since his last examination. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Notably, the last VA examination was performed approximately 10 days prior to his most recent left knee surgery. See also July 2019 lay statement (reported worsening symptoms, including daily knee pain, limping, swelling, and decreased range of motion). The Board further notes that the Veteran's left knee instability is currently evaluated under Diagnostic Codes 5003-5257. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, including Diagnostic Code 5257, were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). For these reasons, the Board finds that a VA examination is needed to ascertain the current severity and manifestations of the Veteran's service-connected lateral instability of the left knee. The matter is REMANDED for the following action: 1. The agency of original jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his service-connected left knee disability that are not already of record. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. Any outstanding VA medical records should also be obtained and associated with the claims file. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected lateral instability of the left knee. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the left knee disability under the rating criteria. In particular, the examiner should provide the range of motion in degrees of the right and left knees. In so doing, the examiner should test the Veteran's range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. The examiner should also indicate whether there is any ankylosis; dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint; or the symptomatic removal of semilunar cartilage. He or she should also address whether the Veteran has recurrent subluxation or lateral instability, and if so, comment as to whether such symptomatology is slight, moderate, or severe. In addition, the examiner should address whether the Veteran has a sprain, incomplete ligament tear, or complete ligament tear causing persistent instability and whether a medical provider has prescribed an assistive device (e.g., cane(s), crutch(es), walker) and/or bracing for ambulation. It should be noted whether the condition has been repaired, unrepaired, or has a failed repair. The examiner should further indicate whether the Veteran has patellar instability involving the patellofemoral complex with recurrent instability after surgical repair that has required a prescription from a medical provider for a brace, cane, and/or walker. It should be noted that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). The presence of objective evidence of pain, excess fatigability, incoordination and weakness should also be noted, as should any additional disability (including additional limitation of motion) due to these factors. Further, the VA examiner should comment as to whether range of motion measurements for active motion, passive motion, weight-bearing, and/or nonweight-bearing can be estimated for both knees for the other VA examination conducted during the appeal period. See January 2019 examination report. If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should clearly explain so in the report. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The AOJ should review the examination report to ensure that it is in compliance with this remand. If the report is deficient in any manner, the AOJ should implement corrective procedures. 4. The AOJ should conduct any other development that may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.S. Chilcote 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.