Citation Nr: 21069824 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 12-35 211 DATE: November 19, 2021 REMANDED Entitlement to an increased rating in excess of 10 percent for right knee instability is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1993 to April 2002. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in February 2009 by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2019 the Board denied entitlement to an increased rating for a right knee disability, including entitlement to a separate compensable rating for right knee instability, and the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). A September 2019 Court Order implemented a Joint Motion for Partial Remand which vacated and remanded that portion of the January 2019 Board decision that denied a separate compensable rating for right knee instability. The Joint Motion specifically noted that the Veteran did not appeal the other denials contained in the January 2019 decision, and therefore the only issue on appeal is the claim for an increased rating for right knee instability. The appeal was returned to the Board, and in January 2020 the Board granted a separate 10 percent rating for right knee instability, but denied a rating in excess of 10 percent. The Veteran again appealed to the Court, and a November 2020 Court Order implemented a Joint Motion for Remand vacating the Board's denial of a rating in excess of 10 percent for right knee instability. The appeal was then returned to the Board and remanded for additional development in August 2021. VA obtained addendum opinions to a July 2021 VA knee examination addressing the Board's questions in September 2021. As such, the directives have been substantially complied with and the matter is again properly before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to an increased rating for right knee instability. In August 2021, the Board remanded the issue on appeal for a new VA examination to determine the current severity of his right knee instability under the revised rating criteria contained in Diagnostic Code 5257. 85 Fed. Reg. 76,453, 76,463 (Nov. 30, 2020) (eff. Feb 7. 2021). The Board specifically requested that the examiner state whether the Veteran had any of the following: 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 diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair; or d) a diagnosed condition involving the patellofemoral complex with recurrent instability without surgical repair. In the July 2021 examination report the examiner stated that the Veteran had a complete ligament tear in the right knee, and further that an attempted surgical repair of the tear had failed. The examiner then stated that the Veteran was prescribed bracing, but not an assistive device, for ambulation. The examiner later noted that there was a history of a meniscal tear or injury, but no associated symptoms. Finally, the examiner noted that there was no recurrent subluxation, persistent instability, or patellar instability. The first addendum opinion obtained in September 2021 stated that a review of the Veteran's medical records did not reflect any documentation showing that the Veteran had any ligament or patellofemoral issues. A second addendum opinion obtained ten days later then stated that the Veteran had a diagnosed condition involving the right knee patellofemoral complex with recurrent instability without surgical repair. The examiner based this on a February 2019 magnetic resonance imaging (MRI) report. In reviewing the findings contained in the July 2021 VA examination report and the September 2021 addendum opinions, the Board notes that two directly contradict each other in two important respects. First, the July 2021 examination report noted that the Veteran had no recurrent subluxation, persistent instability, or patellar instability in his right knee, while the September 2021 opinion noted instability in the right knee. Second, the two documents disagree on the nature of the right knee instability, with the July 2021 examination report noting a failed repair of a complete ligament tear in the right knee and the September 2021 addendum opinion noting a condition involving the patellofemoral complex without surgical repair. In light of these conflicting findings, the Board finds that a remand for another examination is warranted to determine the nature and severity of the Veteran's right knee instability. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate medical professional to determine the current severity of his right knee instability. The examiner is asked to provide the following: (a) Test for pain on active motion, passive motion, weightbearing, and non-weightbearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, an explanation must be provided. (b) State whether the examination is taking place during a flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, severity, and/or extent of functional impairment he experiences during a flare-up of his symptoms. Based on this information, the examiner should then provide an estimate concerning the average additional loss of motion during a flare-up. (c) Clarify the nature or underlying cause of the Veteran's reported right knee instability. Attention is invited to the July 2021 VA examination report noting a failed surgical repair of a complete ligament tear in the right knee and a September 2021 opinion noting a condition of the patellofemoral complex without surgical repair. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Wendell, 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.