Citation Nr: 21071093 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 96-45 562A DATE: November 29, 2021 REMANDED An initial disability rating in excess of 30 percent for degenerative changes of the left knee, on an extraschedular basis, is remanded. Entitlement to separate disability ratings for the left knee, including based on locking, symptomatic removal of semilunar cartilage, and impairment of the tibia and fibula, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1969 to May 1971 in the United States Army. His awards and decorations include the Purple Heart. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office. The appeal, unfortunately, has a lengthy procedural history, stemming from an underlying claim for service connection from 1994. The Board has remanded the appeal on a number of occasions and decided the claims three times, with each decision subsequently vacated by the United States Court of Appeals for Veterans Claims pursuant to Joint Motions for Remand (Joint Motions) filed by the parties. In the most recent two Joint Motions, dated from May 2015 and September 2019, the parties found the Board erred in prior decisions by not ascertaining the significance of an April 2012 finding of a "mild valgus deformity of the left knee, which indicates an outward turned tibia," documented on a VA Aid and Attendance Examination, and by not considering whether this finding would support the award of a separate disability rating under Diagnostic Code 5262. In March 2020, the Board remanded the appeal for development consistent with the Joint Motions. In response, on VA examination in February 2021 and in a July 2021 addendum opinion, the VA examiner stated that the Veteran did not have a valgus deformity on examination and that a 2017 total knee replacement procedure could have corrected it. As this response fails to explain the significance of the April 2012 finding, remand is required. Stegall v. West, 11 Vet. App. 268 (1998); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Further, the February 2021 VA examiner's findings do not comply with the Board's remand directive pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran reported having daily flare-ups that are severe and last from 30 minutes to one hour. Precipitating factors include sitting, standing, and walking for prolonged periods, as well as using stairs, kneeling, squatting, or bending the knee. The examiner determined that the procured evidence suggested that pain, fatigability, weakness, a lack of endurance, and/or incoordination significantly limited the Veteran's functional ability with repeated use over time, as well as during flare-ups. However, contrary to Sharp, the examiner left blank the portions of the examination report in which she was asked to estimate this functional loss in degrees. She provided no explanation for her failure to respond. Given the above-described deficiencies in the February 2021 VA examination report, further remand is required. As the VA Regional Office attempted twice to obtain the requested information from the February 2021 examiner, and she ultimately responded that, "I'm not sure what else to document about this as I feel all of the above questions were answered previously on the worksheets," an examination with another provider should be obtained. The matters are REMANDED for the following action: Afford the Veteran a VA examination with an examiner (other than the February 2021 examiner) to ascertain the current severity of his left knee disabilities, in accordance with the applicable worksheet. If, in responding to the inquiries below, the Veteran's statements are medically-consistent or medically-inconsistent with the evidence of record, please note such in your discussion. (A.) With regard to functional loss after repeated use or during flare-ups, if the Veteran endorses experiencing functional loss due to either event, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups or after repeated use. If the examination is not being conducted during a flare-up or after repeated use over time, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up or after repeated use. If the examiner cannot provide an opinion as to such additional loss of motion without resorting to mere 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). (B.) Explain the significance of the April 2012 VA finding of a "mild valgus deformity of the left knee, which indicates an outward turned tibia," documented on an Aid and Attendance VA Examination. Please note that it is not sufficient to merely state that the Veteran no longer has a valgus deformity. Specifically, please explain whether this finding indicates the malunion or nonunion of the tibia or fibula. If helpful in making this determination, please consider the presence or absence of any symptoms contemplated by the diagnostic code pertaining to impairment of the tibia/fibula (DC 5262) under both versions of the code: Former version of DC 5262: Tibia and fibula, impairment of: o Nonunion of, with loose motion, requiring brace (40 percent) o Malunion of: With marked knee or ankle disability (30 percent); With moderate knee or ankle disability (20 percent); With slight knee or ankle disability (10 percent) Current version of DC 5262: Tibia and fibula, impairment of: o Nonunion of, with loose motion, requiring brace (40 percent) o Malunion of: Please describe all symptomatology pertaining to the knee or ankle (Continued on the next page) o Medial tibial stress syndrome (MTSS), or shin splints: Please describe whether treatment was required for more or less than 12 consecutive months, and whether the condition was responsive to surgery, shoe orthotics, or other conservative treatment. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.