Citation Nr: 21070591 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 17-25 547 DATE: November 24, 2021 ORDER New and material evidence having been received, the petition to reopen the Veteran's claim of service connection for lower back disability to include as secondary to bilateral knee disabilities is granted. Entitlement to a disability rating in excess of 30 percent for service-connected left knee extension is denied. Entitlement to a disability rating in excess of 30 percent for service-connected right knee extension is denied. Entitlement to a separate disability rating of 20 percent for left knee subluxation or instability from January 6, 2016 is granted. Entitlement to a separate disability rating of 20 percent for right knee subluxation or instability from January 6, 2016 is granted. Entitlement to total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted from January 6, 2016. REMANDED Entitlement to service connection for lower back disability, to include as secondary to bilateral knee disabilities is remanded. Entitlement to service connection for bilateral ankle disability is remanded. Entitlement to service connection for left hip disability is remanded. Entitlement to service connection for right hip disability is remanded. Entitlement to a disability rating in excess of 20 percent for left knee subluxation or instability after February 7, 2021 is remanded. Entitlement to a disability rating in excess of 20 percent for right knee subluxation or instability after February 7, 2021 is remanded. FINDINGS OF FACT 1. A May 2012 rating decision denied service connection for lower back disability to include as secondary to bilateral knee disabilities. The Veteran was notified of the decision on May 29, 2012 (05/29/2012 Notification Letter). A notice of disagreement was not filed. The unappealed decision became final. 2. Evidence received since the May 2012 decision is neither cumulative nor redundant of the evidence of record at the time of the last final denial and relates to an unestablished fact necessary to substantiate a claim of service connection of lower back disability to include as secondary to bilateral knee disabilities. 3. The preponderance of the most probative evidence of record does not suggest that the Veteran's left knee disability is manifest by limitation of extension to 30 degrees or more. 4. The preponderance of the most probative evidence of record does not suggest that the Veteran's right knee disability is manifest by limitation of extension to 30 degrees or more. 5. The evidence is at least in equipoise that the Veteran's left knee disability is manifest by moderate recurrent subluxation or lateral instability since January 6, 2016, the date of claim for increased rating. 6. The evidence is at least in equipoise that the Veteran's right knee disability is manifest by moderate recurrent subluxation or lateral instability since January 6, 2016, the date of claim for increased rating. 7. The probative evidence of record is at least in equipoise that the Veteran has been unable to secure or follow substantially gainful employment due to his service-connected disabilities since January 6, 2016. CONCLUSIONS OF LAW 1. New and material evidence has been received since the May 2012 rating decision, denying service connection of lower back disability to include as secondary to bilateral knee disabilities. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 2. The criteria for a rating in excess of 30 percent for left knee extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5261. 3. The criteria for a rating in excess of 30 percent for right knee extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5261. 4. The criteria for a rating of 20 percent and no higher for left knee subluxation or instability have been met since January 6, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 5. The criteria for a rating of 20 percent and no higher for right knee subluxation or instability have been met since January 6, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 6. The criteria for entitlement to total disability rating based on TDIU due to service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has active service from June 1980 to June 1983. This case is before the Board of Veterans' Appeals (Board) from April 2016 (knees and back), January 2017 (TDIU), September 2017 (ankles), May 2018 (right hip), October 2018 (left hip) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran has contended an entitlement to an earlier effective date for bilateral ankle disabilities. Service connection with an effective date for any ankle disability has not been assigned. As such, the issue of effective date is not ripe for appellate review. Further analysis with regard to the effective date for claimed ankle disabilities is not warranted (11/11/2016 NOD, pg. 5). New and Material Evidence 1. Petition to reopen the Veteran's claim of service connection of lower back disability. In May 2012, the AOJ denied service connection for back condition also claimed as secondary to right knee condition (05/24/2012 Rating Decision - Codesheet). The AOJ cited the reason for denial as the evidence did not show an event disease or injury in service or resulted from or aggravated by a service-connected disability (05/29/2012 Notification Letter, pg. 2). Neither a notice of disagreement or new evidence was received within a year of the denial; the unappealed decision became final. Where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial, and it must raise a reasonable possibility of substantiating the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). In January 2016, the Veteran filed a new claim of service connection for his back, secondary to bilateral knee condition (01/06/2016 VA 21-526EZ, Fully Developed Claim). The Veteran also provided statements describing worsening bilateral knee symptoms and his back locking up. The Veteran intended to purchase a lower back brace (01/06/2016 Correspondence, pg. 4; 02/19/2016 Correspondence). Of record since the prior final decision is also a November 2016 medical opinion regarding a relationship between the Veteran's back and knees (11/15/2016 C&P Exam). The Board acknowledges that for the purpose of reopening a claim, evidence received is generally presumed credible and the low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992) and Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In light of this low threshold, the Board finds the evidence presented is both new and material. The Veteran's statement includes additional contentions that both of his knees, as opposed to his original claim referencing only his right knee, have resulted in his back condition. Additionally, the November 2016 VA examination and accompanying opinion, was obtained after the prior final decision. The foregoing evidence provides additional detail regarding the Veteran's back disability, thereby raising a reasonable possibility of substantiating a claim. Accordingly, the Board finds this evidence is new, as it had not been previously submitted to agency decision makers. It is material, as it directly pertains to the basis for the prior final denial, that is evidence of injury in service or resulting from or aggravated by a service-connected disability. Accordingly, the Veteran's petition to reopen his claim of service connection of lower back disability is granted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The Veteran's claim for service connection for his lower back is discussed in the remand section. Increased Rating 2. Entitlement to a disability rating in excess of 30 percent for service-connected left knee disability. 3. Entitlement to a disability rating in excess of 30 percent for service-connected right knee disability. 4. Entitlement to a separate disability rating for left knee subluxation or instability. 5. Entitlement to a separate disability rating for right knee subluxation or instability. The Veteran has claimed he is entitled to a higher disability rating for his service-connected knee disabilities, as well as separate ratings for instability (01/06/2016 VA 21-526EZ, Fully Developed Claim; 11/11/2016 NOD; 11/11/2016 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability). The Veteran contends his knees are more painful, swell more, throb and ache. He also described a need for improved knee braces to help with stability and has described his legs giving out (01/06/2016 Correspondence, pg. 4; 02/19/2016 Correspondence). The Veteran is service-connected for right knee degenerative joint disease with scar at a disability rating of 30 percent from September 30, 2010 pursuant to diagnostic code 5003-5261. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The Veteran's left knee has been rated pursuant to diagnostic code 5261 and has been assigned a 30 percent disability rating from April 19, 2011. The Veteran has been assigned a bilateral factor of 5.1 for diagnostic code 5261 (03/02/2021 Rating Decision Codesheet). As noted above, the Veteran's knee disabilities have been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5261, for limitation of extension of the leg. Under Diagnostic Code 5261, A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion and in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Veteran was afforded a November 2016 VA examination of his knees (11/15/2016 C&P Exam, pgs. 2-10). Degenerative arthritis of both knees and strain of the left knee was noted. Limitation of right knee flexion was found, to 80 degrees, and extension was from 0 to 80 degrees. Pain was noted, causing functional loss. Pain was noted with weight bearing and lateral joint line tenderness was noted upon palpitation. The Veteran's left knee flexion and extension were also limited from 0 to 80 degrees. Pain was noted, causing functional loss. Pain was noted with weight bearing and lateral joint line tenderness was noted upon palpitation. No additional functional loss was noted with repetition on either knee. The examiner could not determine whether pain, weakness, fatigability or incoordination limited functional ability with flare-up of the right knee without speculation. As to the left knee, the exam was conducted during a flare up. Pain was noted however, the examiner did not indicate additional functional loss on either extension or flexion. The examiner did not annotate finding muscle atrophy, subluxation, lateral instability, recurrent effusion, joint instability of either knee. No meniscus conditions were noted. The examiner recorded that the Veteran had arthroscopic debridement of the right knee in the 1980s. The Board notes the examination includes an administrative error referencing a surgical procedure of the left knee. Other evidence of record makes clear that no procedure had been performed on the Veteran's left knee. The Veteran's right knee scar was not found to be painful, unstable, or have a total area equal to or greater than 39 square cm (6 square inches). Regular use of knee braces and a cane as assistive devices due to knee pain was noted. The Veteran's knee disability was determined to impact his ability to perform occupational tasks. The examiner explained the Veteran's knees would result in difficulty with prolonged walking and standing (11/15/2016 C&P Exam, pg. 10). Additional medical evidence of record includes September 2016 treatment notes indicated the Veteran's use of knee braces helped with the feeling of knee instability, although he denied recent falls at that time (12/29/2016 CAPRI, pg. 105). Also, in September 2016, mild limitation of flexion and extension of knees was noted, although specific range of motion measurements were not provided (12/29/2016 CAPRI, pg. 128). December 2016 treatment notes reveal the Veteran's complaint of bilateral knee problems, with the right being worse than left. Prior films showed significant degenerative changes and subluxation of the right knee. Additionally, the Veteran's complained that if he does not wear his brace, the knee will give out and collapse on him (12/29/2016 CAPRI, pg. 1). The Board finds that the preponderance of the evidence is against a rating in excess of 30 percent for either right or left knee extension, pursuant to diagnostic code 5261. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, however, even considering the Veteran's lay reports of symptoms and described functional loss, the degree of limitation reflected by the statements would not result in limitation of motion more nearly approximating extension limited to 30 degrees. The Board has considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). Ankylosis is not suggested by the medical evidence of record, nor has the Veteran suggested his symptoms manifest to unfavorable ankylosis. As such the Board finds assignment of a rating pursuant to diagnostic code 5256 is not appropriate and the Veteran would not benefit from changing the diagnostic code to 5256. Moreover, while revisions were made to the rating schedule effective February 7, 2021, these changes did not impact Diagnostic Code 5261. The Board finds the lay and medical evidence of record is at least in equipoise that a separate rating pursuant to Diagnostic Code 5257 for subluxation or lateral instability is warranted in this case. Under Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. Objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this Diagnostic Code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Although the November 2016 examiner did not find subluxation or instability, other medical evidence of record, and lay statements, suggest otherwise. Treatment notes from December 19, 2016 reference imaging evidence of subluxation. The Veteran's regular use of knee braces and a cane is repeatedly noted in treatment notes in conjunction with the Veteran's complaints of knee weakness, buckling sensation, and instability (12/29/2016 CAPRI, pg. 1, 212). Most recently, the Veteran has described his knees buckling twice a week (06/04/2020 Medical Treatment Record - Government Facility, pg. 100). The Board finds the evidence suggests the Veteran's instability is more than slight, but does not manifest to such a degree to be considered severe. Falls have not been regularly noted, most recent medical records do not classify the Veteran as a fall risk. The Veteran is able to ambulate with assistive devises. The Board finds the Veteran's description of his instability most closely approximates moderate recurrent subluxation or lateral instability warranting a 20 percent rating. The Board notes that effective February 7, 2021, the VA amended the rating criteria for disabilities of the knee and leg. The amended Diagnostic Code 5257 provides ratings for other impairment of the knee based on recurrent subluxation or instability, and patellar instability. Discussion on this point is in the remand section. Although evidence of right knee arthroscopic surgery is of record, the record does not suggest, nor does the Veteran assert dislocation or removal of semilunar cartilage warranting a rating under diagnostic code 5258 or 5259 for either knee. As such the Board does not find a rating under 5258 or 5259 would be appropriate or more advantageous to the Veteran. The Board notes that medical evidence of record suggests limitation of flexion of both knees was limited to 0 to 80 percent. Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. As such, the medical evidence does not suggest that a separate rating for limitation of flexion was warranted for either knee. 38 C.F.R. § 4.71a, Diagnostic Code 5260. The Veteran does not contend nor does the evidence suggest impairment of the tibia and fibula or genu recurvatum warranting rating pursuant to either DC 5262 or 5263. As such, rating under either DC 5262 or 5263 is not appropriate in this case. The Board has considered the Veteran's diagnosis with bilateral knee degenerative arthritis (11/15/2016 C&P Exam, pg. 9). The Veteran's current disability rating exceeds the highest rating authorized pursuant to Diagnostic Code 5003. The Board also notes that a separate diagnosis for arthritis and limitation of motion would constitute pyramiding, which is to be avoided. Accordingly, the Board finds a rating under 5003 would not be appropriate or more advantageous to the Veteran in this case. The Board has considered whether the granting of a separate rating pursuant to DC 5257 would result in a combined rating for either leg in violation of the amputation rule. The amputation of the middle or lower third of the leg is assigned a 60 percent disability rating under Diagnostic Code 5162. Here, each leg is assigned ratings of 30 percent and 20 percent, that result in a combined rating of 40 percent. This combined rating is lower than the 60 percent for amputation. As such the amputation rule is not violated by the assignment of an additional rating pursuant to an additional diagnostic code. 38 C.F.R. §§ 4.25 and 4.68. In sum, after review of the evidence, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 30 percent for right or left knee extension. However, the Veteran is entitled to a separate disability rating for moderate recurrent subluxation or lateral instability of his right and left knees, warranting disability ratings of 20 percent for each leg effective January 6, 2016. The Veteran is entitled to a bilateral factor of 3.6 for these disabilities as well. 38 C.F.R. §§ 4.26. TDIU 6. TDIU due to service-connected disabilities. The Veteran also seeks assignment of TDIU, based on his assertion that his service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. Specifically, the Veteran has stated he had to stop working a asbestos, demolition mold and mildew removal job in 2012 because of knee pain ( 03/02/2021 Correspondence; 03/06/2017 VA 21-4192 Request for Employment Information in Connection with Claim for Disability). The Board notes that the Veteran is service connected for right and left knee disabilities, for limitation of motion pursuant to diagnostic code 5261 and assigned a 30 percent disability rating for each knee. The Veteran has been assigned a bilateral factor of 5.1 for Diagnostic Code 5261 (03/02/2021 Rating Decision Codesheet). By this decision, the Veteran is also service connected for right and left knee disabilities, for moderate recurrent subluxation or lateral instability pursuant to diagnostic code 5257 and assigned a 20 percent disability rating for each knee. The Veteran is entitled to a bilateral factor of 3.6 for Diagnostic Code 5257. A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one service-connected disability, or two or more with the same etiology or affecting the same body system, the disability rating must be 60 percent or more. Id. If there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more. Id. Taking into account the bilateral factors, the Veteran's rating under 5261 is 60 percent and 40 percent under 5257. The combined rating for the Veteran's disabilities is 80 percent, effective January 6, 2016, the date of the Veteran's claim for increased rating for his knees. 38 C.F.R. §§ 4.25 and 4.68. The Veteran meets the schedular criteria for TDIU. Review of the record reveals the Veteran has past work experience as a construction worker, described as heavy work and unskilled. A vocational expert has opined that the Veteran would be unable to perform past work 03/02/2021 SSA/SSI Letter, pg. 5). An October 2016 review of the Veteran's ability to perform work-related activities noted the Veteran could not lift or carry more than 20 pounds. He could not sit for more than 4 hours, or walk or stand for more than 1 hour in a workday (11/14/2016 SSA/SSI Letter) The November 2016 VA examiner noted that the Veteran's knee disability would impact his ability to perform occupational tasks. The examiner explained the Veteran's knees would result in difficulty with prolonged walking and standing (11/15/2016 C&P Exam, pg. 10). The Board finds the Veteran's limited work history of heavy unskilled labor, and the impact of his knees on his ability to perform this type of work, in conjunction with the evidence that left his last position due to his knee pain, weighs in favor of his claim for TDIU. The Board has considered that the Veteran has a high school education and 2 years of college. The evidence suggests he has not obtained any other education or training, either before or after he became too disabled to work (11/11/2016 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability, pg. 2). The evidence does not suggest that the Veteran has ever worked in a field utilizing this education. Even this education qualified him for sedentary employment, the October 2016 review suggest he is not able to sit for more than 4 hours in a workday, also weighing in favor of his TDIU claim. In light of the foregoing the Board finds the evidence is at least in equipoise that the Veteran's service-connected knee disabilities prevent him from securing for following gainful employment. Accordingly, the Veteran's claim for TDIU is granted. REASONS FOR REMAND 7. Lower back disability, as secondary to bilateral knee disabilities. The Veteran contends his lower back pain is due to his altered gait, resulting from his service-connected bilateral knee disabilities (01/06/2016 Correspondence, pg. 4; 02/19/2016 Correspondence; 08/14/2019 Rating Decision - Codesheet). The Veteran has current diagnoses of chronic back pain, lumbosacral strain, and degenerative arthritis of the spine meeting the first element for service connection (11/15/2016 C&P Exam, pg. 11; 12/08/2017 CAPRI, pg. 2). A review of the Veteran's service treatment record does not reveal complaints of The Veteran was afforded a November 2016 VA examination for secondary service connection. The examiner opined that the Veteran's back disability is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition. The examiner explained that there is no gait or weight bearing disturbance of severity sufficient to implicate the Veteran's knee conditions as etiology for his current lumbar strain and arthritis which are more likely due to typical senescent wear and tear over time since discharge (11/15/2016 C&P Exam). The Veteran has argued that the examiner did not consider specific medical treatment notes suggesting his gait may be worsening gait in recent years. The Veteran has argued this omission renders the November 2016 examination insufficient (06/23/2020 Third Party Correspondence). Despite earlier treatment notes suggesting the Veteran's gait was within normal limits, a November 2016 treatment note indicated a weight shift to the right, and the Veteran was issued a cane during the encounter. Other treatment notes reference issues with the Veteran's gait. In February and May 2018 an antalgic gait was noted. In February 2019, the Veteran's use of cane to ambulate was noted. In June 2019 the Veteran's limping gait was described. In March 2021, his gait was described as unsteady (03/28/2017 CAPRI, pg. 65; 08/27/2018 CAPRI, pgs. 23 and 56; 05/15/2019 CAPRI, pg. 82; 06/19/2019 CAPRI, pg. 13; 03/02/2021 VA Form 28-0791, pg. 4). While the November 2016 examiner indicated the gait issues were not severe enough to result in a back disability, the examiner did not have the opportunity to address the other treatment notes referencing the Veteran's gait. As such, the Board finds the medical evidence of record is not sufficient for the Board to determine whether the various gait complaints and findings, noted since the November 2016 examination, are of a severity sufficient to implicate the Veteran's knee conditions as etiology for his current lumbar strain and arthritis. Finding the medical evidence is not sufficient for the Board to decide the claim, remand for an addendum opinion is necessary. 8. Bilateral ankle disability, to include as secondary to bilateral knee disabilities. The Veteran contends that he is entitled to service connection for bilateral ankle disabilities, to include as secondary to his service-connected knee disabilities (05/15/2017 VA 21-526b, Veteran Supplemental Claim; 12/06/2017 NOD; 09/26/2018 Form 9). The Board notes a fracture of the Veteran's left ankle at age 17 was indicated at entry. The fracture was not identified as a defect or diagnosis on his entrance examination and the Veteran was found qualified for enlistment. The Board finds the annotation was made in association with the Veteran's medical history, but did not suggest a defect at enlistment. Accordingly, the presumption of soundness with regard to the Veteran's left ankle remains intact (09/13/2011 STR Medical, pg. 53). During a July 2017 VA examination, a left ankle diagnosis was not made, and the examiner noted no left ankle complaints at that time. The examiner did not find evidence of pain during the examination. Although not noted by the examiner, left ankle pain is suggested by the record, to include buddy statements attesting to witnessing ankle issues (07/12/2011 Buddy / Lay Statement). It is not clear whether the lay statements were considered by the July 2017 examiner. With regard to the right ankle, a 2017 diagnosis of a right lateral collateral ligament sprain and complaints of right ankle pain since 2015 were noted by the examiner (07/28/2017 C&P Exam, pgs. 2 and 3). The examiner opined the claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition. The examiner explained the right ankle sprain was unlikely due to knee conditions because these are two are separate and distinct anatomic areas and no correlation between sprain and knee condition is known (07/28/2017 C&P Exam, pg. 2). The Veteran asserts that the examination was minimal and did not include questions regarding pain and functional loss. Although the examiner's report indicates pain and any associated functional loss were assessed, in his rationale, the examiner did not address lay evidence of record suggesting bilateral ankle difficulties. Additionally, there is evidence of gait disturbances in the record that the examiner did not address. The Board has considered the Veteran's assertion that the examination of his ankles was insufficient. (01/16/2018 Correspondence; 06/23/2020 Third Party Correspondence). For the reasons set forth above, the Board agrees. The examiner did not address evidence of record, to include lay evidence of ankle trouble, in-service treatment of the left ankle, and medical evidence documenting his gait disturbance. As such, the Board finds remand is required to obtain a new examination and medical opinion with adequate rationale. 9. Left hip disability, to include as secondary to bilateral knee disabilities. 10. Right hip disability, to include as secondary to bilateral knee disabilities. The Veteran has described ongoing right hip pain and left hip pain since the summer of 2017. He contends his right and left hip disabilities are secondary to his bilateral knee disabilities (06/23/2020 Third Party Correspondence). In addition to complaints of pain, November 2017 hip imaging revealed mild left hip degenerative joint disease (05/15/2019 CAPRI, pg. 134). The Veteran was afforded an August 2018 VA examination and a November 2018 addendum opinion for his hips (08/10/2018 C&P Exam; 11/19/2018 C&P Exam). His diagnosis with right and left hip strain was confirmed. The August 2018 examiner opined the claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of Veteran's service-connected condition. The examiner found the hip conditions and knee strains were not medically related, explaining hip conditions are separate entities from the service-connected knee conditions. The examiner explained that arthritis or strain in one joint does not cause arthritis in another joint. The medical literature does not support a medical relationship. Although the examiner addressed any connection with regard to arthritis, the examiner did not adequately address lay statements regarding bilateral hip pain or the medical evidence of gait disturbances. As a result of these omissions, the Board finds remand is required to obtain a new examination and medical opinion with adequate rationale. Additionally, the Board notes that a finding of service connection for the Veteran's back, may also inform a decision with regard to the Veteran's described hip pain. As such the claims are intertwined. 11. Right knee disability, subluxation or instability, after February 7, 2021. 12. Left knee disability, subluxation or instability, after February 7, 2021. As previously noted, following is discussion regarding the Board's finds that remand is required to assess the Veteran's knees, after February 7, 2021, in light of the new rating criteria effective that date. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). By this decision, the Veteran's right and left knee disabilities are rated under Diagnostic Code 5257 which now provides: Recurrent subluxation or instability is assigned a 10 percent disability rating for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent disability rating is warranted for either a (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. For patellar instability, a 10 percent disability rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker A 30 percent disability rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Because the record does not contain sufficient evidence to rate the Veteran's disability under the new rating criteria, a new examination is warranted. The claim is REMANDED for the following action: 1. Forward the claims file to the November 2016 examiner if available (if not available, to a comparably qualified and appropriate clinician) for an addendum opinion consistent with this remand. If the following cannot be addressed without an examination, an examination should be scheduled. The examiner must opine whether any existing back disorder or disability is at least as likely as not (50 percent probability or more) related to an in-service injury, event, or disease. The examiner should also provide an opinion as to whether any back disability is at least as likely as not (50 percent probability) proximately due to service-connected bilateral knee disabilities. The examiner should address whether it is as likely as not (50 percent probability) that the Veteran's service-connected knee disabilities have aggravated any back disability beyond its natural progression. If aggravation is found, the examiner should identify baseline level of disability prior to such aggravation. The examiner is reminded to consider the Veteran's lay reports, and a reason must be provided if the Veteran's lay reports are rejected. Lay statements cannot be rejected solely due to a lack of medical documentation. If there is a medical reason to accept or not accept the Veteran's contentions that his back pain and knee pain are related, the examiner should provide them. If the absence of medical documentation is relevant, the relevance must be explained because the absence of evidence is not positive evidence of the existence or non-existence of an event. If the examiner is able to gather additional understanding or information regarding the circumstances surrounding any in-service injury or event, the examiner should include that information in his remarks. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and explain why this is so, (e.g., whether an opinion is beyond what any medical practitioner might be able to provide, based on the evidence of record and current medical knowledge). 2. Schedule the Veteran for an examination by an appropriately qualified clinician to determine the nature and etiology of any existing right or left ankle disorder or disability. The examiner should review the entire claims file and this remand in conjunction with the examination. The examiner is requested to render an opinion as to whether it is at least as likely as not (i.e., a likelihood of 50 percent or more) that any currently diagnosed ankle disorder/disability is a result of service or any incident occurring during service. With regard to the left ankle, the examiner should address in-service treatment from January 18, 1983. The examiner should also provide an opinion as to whether any right or left ankle disability is at least as likely as not (50 percent probability) proximately due to service-connected bilateral knee disabilities. The examiner should specifically address medical evidence of record noting the Veteran's gait disturbances and use of assistive devices to include braces and a cane. The examiner should address whether it is as likely as not (50 percent probability) that the Veteran's service-connected bilateral knee disabilities aggravated any right or left ankle disability beyond its natural progression. If aggravation is found, the examiner should identify baseline level of disability prior to such aggravation. The examiner is reminded to consider the lay reports of ankle difficulties. A reason must be provided if lay reports are rejected. Lay statements cannot be rejected solely due to a lack of medical documentation. If there is a medical reason to accept or not accept lay contentions, the examiner should provide them. If the absence of medical documentation is relevant, the relevance must be explained because the absence of evidence is not positive evidence of the existence or non-existence of an event. If the examiner is able to gather additional understanding or information regarding the circumstances surrounding any in-service injury or event, the examiner should include that information in his remarks. The examiner should reconcile any conflicting medical evidence of record to the extent possible and provide all findings, along with a comprehensive rationale for all opinions expressed. 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). 3. Schedule the Veteran for an examination by an appropriately qualified clinician to determine the nature and etiology of any existing right or left hip disorder or disability. The examiner should review the entire claims file and this remand in conjunction with the examination. The examiner is requested to render an opinion as to whether it is at least as likely as not (i.e., a likelihood of 50 percent or more) that any currently diagnosed right or left hip disorder/disability is a result of service or any incident occurring during service. The examiner should also provide an opinion as to whether any right or left hip disability is at least as likely as not (50 percent probability) proximately due to service-connected bilateral knee disabilities. The examiner should specifically address medical evidence of record suggesting the Veteran's gait disturbances and use of assistive devices to include braces and a cane. The examiner should address whether it is as likely as not (50 percent probability) that the Veteran's service-connected bilateral knee disabilities aggravated any right or left hip disability beyond its natural progression. If aggravation is found, the examiner should identify baseline level of disability prior to such aggravation. If the Veteran's back disability is found to be service connected, the examiner should also provide an opinion as to whether any right or left hip disability is at least as likely as not (50 percent probability) proximately due to service-connected back disability. The examiner should also address whether it is as likely as not (50 percent probability) that the Veteran's service-connected back disability aggravated any right or left hip disability beyond its natural progression. If aggravation is found, the examiner should identify baseline level of disability prior to such aggravation. The examiner is reminded to consider the lay reports of hip difficulties. A reason must be provided if lay reports are rejected. Lay statements cannot be rejected solely due to a lack of medical documentation. If there is a medical reason to accept or not accept lay contentions, the examiner should provide them. If the absence of medical documentation is relevant, the relevance must be explained because the absence of evidence is not positive evidence of the existence or non-existence of an event. If the examiner is able to gather additional understanding or information regarding the circumstances surrounding any in-service injury or event, the examiner should include that information in his remarks. The examiner should reconcile any conflicting medical evidence of record to the extent possible and provide all findings, along with a comprehensive rationale for all opinions expressed. 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). 4. Schedule the Veteran for an examination of the severity of his right and left knee disabilities, from February 7, 2021, in light of new rating criteria effective that date. The examiner should specifically address bilateral subluxation and instability (Diagnostic Code 5257). The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. 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. To the extent possible, the examiner should identify any symptoms and functional impairments due to the disability being examined alone and discuss the effect of such disability 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 based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. The examiner should also address whether any functional impairment of the Veteran's knees is such that it amounts to favorable or unfavorable ankylosis. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. A. Myers 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.