Citation Nr: 21068273 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 18-45 006 DATE: November 9, 2021 REMANDED The appeal for a disability rating in excess of 20 percent for right knee instability is remanded. The appeal for a disability rating in excess of 10 percent for right knee arthritis with painful motion is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1987 to October 1991, when he was discharged for reason of physical disability. This matter arises from a September 2017 determination by the Agency of Original Jurisdiction (AOJ). The Veteran presented sworn testimony in support of his appeal during a July 2021 hearing before the undersigned Veterans Law Judge. Historically, the Veteran injured his right knee during a motor vehicle accident in service. He underwent ligament reconstruction surgery in service and was subsequently discharged from service for physical disability related to his right knee and right ankle. Service connection for residuals of the right knee surgery was granted in a December 1993 AOJ decision and has been in effect since that time. The instant appeal stems from a June 2017 claim for an increased rating. The Veteran asserts that his right knee causes greater functional impairment than is reflected in the ratings currently assigned for instability and for limitation of motion. In particular, he asserts that he experiences constant swelling and pain in the knee, and instability, causing stumbles and the frequent worry of falling. He believes that but for his rigorous exercise regimen, his right knee would be practically non-functional. Unfortunately, a remand is required prior to further appellate review. The Veteran's hearing testimony revealed recent VA medical care, to include a recent scan of his knee. The most recent VA medical records available for review are dated in 2017, and thus do not reflect the condition of the Veteran's right knee during most of the appeal period. These records have not been added to his claims file for review by adjudicators. Similarly, it appears that there may be pertinent private medical records outstanding. On his April 2018 notice of disagreement, the Veteran reported that he was recently seen by Alabama Ortho Spine and Sports. These records have not been released to VA; therefore, upon remand, the Veteran is requested to authorize a release of information form for these and any other non-VA medical care for his knee from 2017 to the present, so that adjudicators may be fully informed regarding his right knee complaints and treatment. Effective February 7, 2021, the applicable rating criteria for orthopedic disabilities, including knees, were revised. 85 Fed. Reg. 76453 (Nov. 30, 2020). When regulations are revised during the course of an appeal, the VA is generally required to consider the claim in light of both the former and revised schedular criteria and to apply the regulation more favorable to the Veteran. The new rating criteria, however, may be applied only prospectively from the effective date of the change forward, unless the regulatory change specifically permits retroactive application. VAOPGCPREC 3-2000 (Apr. 10, 2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (emphasis added). The final rule did not specifically permit retroactivity of the changes. The VA has an independent obligation to consider all potentially applicable provisions of law and regulation and to apply the diagnostic criteria in a manner that maximizes benefits. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Bradley v. Peake, 22 Vet. App. 280 (2008). Thus, after gathering the relevant evidence, the VA will consider all applicable criteria in evaluating the Veteran's claims. In light of the new regulations, which provide more specific criteria for the evaluation of knee instability than the older regulations did, the Board determines that an updated VA examination should be accomplished, to identify any changes in the Veteran's right knee function as well as to more precisely evaluate his right knee instability. We note that the Veteran testified during the July 2021 hearing on appeal that he is willing to report for such an examination, if deemed helpful to evaluating his appeal. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records from the Birmingham VA Medical Center and all associated clinics for the period from December 2017 to the Present. The reports of all tests and studies pertinent to the right knee conducted from 2017 to the present must be included. 2. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical care providers who have provided evaluation and/or treatment for his right knee from 2017 to the present, to include Alabama Ortho Spine and Sports, and any other private medical providers. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right knee disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the older and the newer rating criteria. All tests and studies deemed helpful by the examiner should be accomplished in conjunction with the examination. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement 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 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. The examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. 4. After gathering all relevant evidence, the AOJ must review the Veteran's knee rating under both the older rating criteria and the newer rating criteria, performing a comparison of the two for the period of time from February 2021 forward, and applying the version which most benefits the Veteran. ] T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Harter, Heather J. 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.