Citation Nr: 21068762 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 14-35 401A DATE: November 12, 2021 REMANDED Entitlement to a disability rating higher than 30 percent for total right knee replacement effective June 1, 2017 and effective January 1, 2019 is remanded. Entitlement to a disability rating higher than 20 percent for instability, status-post anterior cruciate ligament reconstruction with fractured patella, of the right knee prior to April 13, 2016 is remanded. Entitlement to a disability rating higher than 10 percent for degenerative joint disease of the right knee prior to April 13, 2016 is remanded. Entitlement to a compensable disability rating for scar of the right knee is remanded. REASONS FOR REMAND The Veteran testified before the undersigned Veterans Law Judge in an August 2017 Travel Board hearing. A transcript of that hearing has been associated with the file. In an August 2021 rating decision, the RO assigned a separate rating for scars of the knees, assigning noncompensable ratings for all three scars. The effective date assigned was November 7, 2017. The RO did not state why November 7, 2017 was the assigned effective date, but of note, it is the same date as the assignment for temporary total evaluation for total right knee replacement, for the second time it was assigned. As this is part and parcel of the right knee disabilities on appeal, the Board has taken jurisdiction over the scars disability as reflected in the title page. In order to comply with the terms of November 2020 Joint Motion for Partial Remand (JMPR), which the United States Court of Appeals for Veterans' Claims (Court) granted in December 2020, the Board remanded the matters in June 2021. Unfortunately, a review of the July 2021 VA examination report illustrates there has not been substantial compliance with the directives, and therefore an additional remand is required. Stegall v. West, 11 Vet. App. First, despite, the record reflecting a few disabilities related to the right knee, the July 2021 VA Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ) illustrated only one diagnosis, a 2018 diagnosis of total knee replacement of the right knee. As such, clarification as to all the current right knee disabilities during the entire appeal period would be helpful. Second, the examiner was asked to provide a retroactive opinion as to the severity of the Veteran's instability and degenerative joint disease of the right knee prior to April 13, 2016. Although the examiner responded by stating the Veteran's right knee disability was more likely moderate, the examiner failed to explain how he reached that conclusion and unfortunately that vague statement does not provide information sufficient enough to understand what the level of severity was from January 2013 (the beginning of the appeal period) to April 12, 2016. Lastly, the Court, in Sharp v. Shulkin, 29 Vet. App. 26 (2017) held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. The July 2021 examination report illustrates the Veteran denied flare-ups, however given the fact that the report is lacking vital information and the Veteran described functional impairment, the Board finds that an additional remand would be helpful to clarify whether the Veteran still experiences flare-ups and if so to document information consistent with Sharp v. Shulkin. Also, of note, the Veteran reported flare-ups during the November 2013 and October 2018 VA examinations, and the report of flare-ups were also reiterated by the December 2013 VA examiner who authored the addendum opinion. As stated in the June 2021 remand, during the pendency of the appeal the criteria for evaluating musculoskeletal disorders were revised, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 38C.F.R. §4.71a, Diagnostic Codes 5003, 5010, 5055, and 5257. As such, the Board will request that the VA examiner consider the new criteria in addition to the criteria in effect prior to February 7, 2021. The matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should schedule the Veteran for a VA examination by an appropriate clinician to determine the current severity of his right knee disabilities, preferably with an examiner other than the one who performed the October 2018 VA examination or the one who performed the July 2021 VA examination, to assess the severity of his right knee disabilities. 2. The examiner is requested to identify all current right knee disabilities throughout the appeal period (from January 2013), to include residuals of status-post total knee replacement, instability, and degenerative joint disease, and scars. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities of the right knee under the rating criteria, to include assessing the levels of severity of the residuals of status-post total knee replacement, severity of instability, severity of the degenerative joint disease, and severity of the scars. To the extent possible the examiner should opine as to the level of severity of the Veteran's right knee disabilities, to include the residuals of status-post total knee replacement, instability, and degenerative joint disease throughout the appeal period (from January 2013). The examiner is asked to provide a retroactive opinion as to the severity of the Veteran's instability and degenerative joint disease of the right knee prior to April 13, 2016, specifically from January 2013 to April 12, 2016. The examiner is requested to note in his/her report that a full review of the Veteran's electronic claims file, to include this remand, was completed. The examiner is asked to assess the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If the examiner is unable to perform any of the requested testing, the examiner must clearly indicate why such testing could not be performed, and attempt to provide an assessment based on the medical evidence of record. The examiner should 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 advised that the Veteran has reported flare-ups of the right knee during prior VA examinations. 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 whether it is due to the examiner not having the knowledge or training. Additionally, the examiner should determine whether the Veteran has or has ever had, as of February 7, 2021, unrepaired or failed repair of complete ligament tear or sprain, incomplete ligament tear, or repaired complete ligament tear that causes persistent instability, and or a diagnosed condition involving the patellofemoral complex with recurrent instability. Also, if arthritis is found the examiner should determine whether as of February 7, 2021, the arthritis documented is degenerative arthritis or post-traumatic arthritis. (Continued on the next page) 3. The AOJ should ensure that the examiner provides all information required for rating purposes and that the opinions conform with the remand directives. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Talamantes, 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.