Citation Nr: 21071552 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 15-15 197 DATE: November 30, 2021 REMANDED The appeal for a disability rating greater than 10 percent for patellofemoral pain syndrome with degenerative joint disease of the left knee is remanded. The appeal for entitlement to a total disability rating based upon individual unemployability (TDIU) prior to September 15, 2018, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1976 to October 1988. The Veteran and his wife presented sworn testimony in support of his appeal during a September 2018 hearing before the undersigned Veterans Law Judge. The Board remanded for further evidentiary and procedural development in May 2019 and June 2021. Unfortunately, another remand is necessary as the prior Board instructions have not been fully completed. Where the record before the Board is inadequate to render a fully informed decision, a remand to the AOJ is required in order to fulfill its statutory duty to assist the Veteran to develop the facts pertinent to the claim. Furthermore, the AOJ is required to fully complete the development ordered by the Board. Stegall v. West, 11 Vet. App. 268 (1998); Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). Effective February 7, 2021, the applicable rating criteria for certain musculoskeletal disabilities 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 Board 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). In this case, the Board had remanded in June 2021 for the AOJ to perform an analysis of the new rating criteria for musculoskeletal disabilities. In particular, the Board noted the Veteran's hearing testimony regarding his prescribed knee brace. The prescription of a knee brace is confirmed in his VA medical records. In the final rule for the revised criteria, VA stated that "[a] qualified medical professional's prescription (of a knee brace) provides objective evidence of instability." 85 Fed. Reg. at 76458. The Veteran's hearing testimony that he frequently experiences a falling sensation but has been able to catch himself is significant as well. Because the newly revised criteria include substantial changes for evaluating instability due to incomplete or complete ligament tear and/or patellar instability under Diagnostic Code 5257, the newer rating criteria could have an impact upon the Veteran's left knee rating. Unfortunately, the Supplemental Statement of the Case issued in September 2021 does not contain a comparison of the newer and older regulatory criteria, as applied to the Veteran's case, and does not contain any mention of the Veteran's knee brace or consideration of a potential separate disability rating for instability. Also unfortunate, the August 2021 VA examination evaluated knee instability under the new criteria but did not contain an evaluation of instability under the old criteria the extent of instability in terms of mild, moderate or severe. See, e.g., VA examination dated November 2020 (evaluating knee instability in terms of millimeters of movement). As the claim for an earlier effective date for the Veteran's TDIU grant may be dependent upon the outcome of the knee claim, further review of the TDIU will be deferred. As the appeal is being remanded, the Veteran's VA treatment records should be updated for the claims file. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records from September 2021 to the present. 2. Schedule the Veteran for VA examination by an appropriate specialist to determine the extent and severity of his left knee disability. The claims file must be reviewed by the examiner and the examination report must reflect that the claims files were reviewed. The VA examiner must also provide an opinion that addresses the following: a) Identify whether the Veteran manifests incomplete/complete ligament tear or a diagnosed condition involving the patellofemoral complex (defined as consisting of the quadriceps tendon, the patella and the patellar tendon), and identify, to the extent possible, the reason(s) why the Veteran was prescribed a knee brace by VA in 2015; b) the extent of instability in terms of degree (see, e.g., VA examination dated November 2020 (evaluating knee instability in terms of millimeters of movement); c) Provide current range-of-motion and repetitive motion findings of the left knee. d) Note whether there is currently any additional limitation of motion during flare ups and following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion of the left knee. DeLuca v. Brown, 8 Vet. App. 20 (1995). If feasible, the determination should be portrayed in terms of the degree of additional range of motion of the left shoulder. 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, and comment whether such demonstrated limitations are medically consistent with the underlying disorder. 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). d) Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), the examiner must test the Veteran's joints must be tested for pain in active motion and passive motion, and pain with weight-bearing and without weight-bearing; e) State what impact, if any, the Veteran's left disability disability has had on his activities of daily living, including his limitations in performing work duties over the course of an 8 hour day since 2012. 3. Readjudicate the claims on appeal in accordance with the Boards instructions above. 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.