Citation Nr: 21072880 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 13-20 000 DATE: December 6, 2021 REMANDED A rating in excess of 10 percent for degenerative joint disease (DJD) of the left knee. A rating in excess of 10 percent for DJD of the right knee. A separate compensable rating for a meniscal condition of the left knee. A separate compensable rating for a meniscal condition of the right knee. A separate compensable rating for neurological manifestations of the left knee. A separate compensable rating for neurological manifestations of the right knee. An effective date earlier than December 11, 2013, for a separate rating for left knee instability. A rating in excess of 10 percent for left knee instability. REASONS FOR REMAND The Veteran served on active duty from June 1983 to October 2003. The case is on appeal from an August 2011 rating decision. In August 2015, the Veteran testified at a Board hearing before a Veterans Law Judge who is no longer employed by the Board. In a March 2017 letter, the Veteran was offered an opportunity to appear at an additional hearing, but he did not respond. In July 2017, the Board denied the Veteran's claims for higher disability ratings for his knees. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a June 2018 Joint Motion for Remand (JMR), in a June 2021 order, the Court vacated the July 2017 Board decision and remanded the matter to the Board for further appellate review. In January 2019 and March 2021, the Board remanded the claims for additional development and new VA examinations of the knees in accordance with the JMR. Upon remand, a September 2021 rating decision granted an earlier effective date of December 11, 2013, for a 10 percent evaluation for the Veteran's left knee instability. This earlier effective date was assigned based on a statement of support of that date in which the Veteran indicated instability of the left knee. The RO found this to be an informal claim for increase. 1. A rating in excess of 10 percent for DJD of the left knee. 2. A rating in excess of 10 percent for DJD of the right knee. 3. A separate compensable rating for a meniscal condition of the left knee. 4. A separate compensable rating for a meniscal condition of the right knee. 5. A separate compensable rating for neurological manifestations of the left knee. 6. A separate compensable rating for neurological manifestations of the right knee. 7. An effective date earlier than December 11, 2013, for a separate rating for left knee instability. 8. A rating in excess of 10 percent for left knee instability. In the June 2018 JMR, it was agreed that the VA examinations of the Veteran's knees did not provide adequate rationale for assessments of the Veterans' functional limitations of the knees due to factors such as pain, weakness, fatigability, and incoordination to include flare-ups and after repetitive use. Additionally, the JMR noted that the Board did not provide an adequate assessment of the Veteran's claims for (1) separate evaluations for the removal of symptomatic semilunar cartilage (DC 5259) and (2) an earlier effective date for a compensable evaluation for left knee instability (DC 5257). Pursuant to the January 2019 Board remand, the Veteran underwent a VA examination of the knees in December 2020. The Veteran did not report flare-ups of his knees, but described his functional impairment as having pain when walking and that he was unable to squat or kneel. The examiner, however, did not address what could be arguably be considered flare-ups of the knees as described by the Veteran. In fact, the examiner did not complete the section on flare-ups in the examination report. As a result, the Board again remanded the case for another VA examination to reevaluate the Veteran's bilateral knee claims, and to address flare-ups. It was additionally requested that the Veteran undergo a separate neurological evaluation of the knees based on his claim of neurological manifestations related to his knees. In June 2021, the Veteran underwent a new VA examination. However, the examiner indicated that the Veteran denied flare-ups, so did not provide any estimates of range of motion (ROM) during flare-ups, despite continued reports of an inability to squat and pain with bending, and "sharp pains on the inside and back of knees when standing or walking," over the last two years. Thus, the Board finds that another remand is warranted as both the January 2019 and June 2021 examinations are not wholly adequate for rating purposes to evaluate the Veteran's knee claims, and there was not substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Additionally, retrospective medical opinions are needed to adequately evaluate the knee disabilities throughout the appeal period. See Correia v. McDonald, 28 Vet. App. 158 (2016) (holding that, per 38 C.F.R. § 4.59, in order to assess the effect of painful motion, ROM tests for both passive and active motion, and in both weightbearing and non-weightbearing circumstances, should be done). See also Sharp v. Shulkin, 29 Vet. App. 26 (2017) (holding that the examiner should "estimate the functional loss that would occur during flares"). Retrospective opinions are needed to estimate prior limitation of motion, instability, and possible separate symptoms attributable to any meniscal conditions. Finally, while a peripheral nerve disability benefits questionnaire (DBQ) was completed in August 2021, it states that the examination was conducted in connection with unrelated disabilities involving radiculopathy, left upper extremity and right upper extremity. With regard to the knees, the August 2021 VA examiner remarked that "No diagnosis given for neurological manifestations of left and right knee. Symptoms reported consist of pain of sharp stinging pains to his knees, which is related to his knee condition addressed on the knee DBQ." Earlier, the June 2021 VA examiner gave only the conclusory statements that the Veteran denies any neurological manifestations. This record is confusing as it is not clear why the Veteran would deny neurologic manifestations at the VA examinations when he is expressly seeking separate ratings based on his own reported neurologic complaints. Further clarification is needed. In light of the remand, updated VA treatment records should be obtained. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records dated since June 2016. 2. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-service examination is not feasible) by an appropriate medical professional for his service-connected bilateral knee conditions. The record, including a complete copy of this remand, should be made available for review. (a) The examiner should first ascertain the current severity of his service-connected right and left knee. This includes reporting findings in regard to pain on range of motion testing and an estimation of functional loss, per Correia and Sharp. (i) Specifically, the examiner should estimate the current amount in degrees of ROM lost in his both knees due to pain in both weightbearing and non-weightbearing positions, and on both active and passive motion. (ii) The examiner should estimate the amount in degrees of ROM lost in both knees due to flare-ups experienced by the Veteran. If the examiner again determines that the Veteran denies flare-ups, the examiner must explain why the Veteran's reports of functional loss are not consistent with flare-ups. (iii) The examiner should provide an opinion as to the current severity of instability of the Veteran's right and left knees (absent, slight, moderate, severe), and any use of assistive devices (brace, cane, crutch, walker), and whether with or without a prescription. (iv) The examiner is asked to identify any current symptoms of a meniscal condition of the right and left knee, to include but not limited to, pain with extension, pain with flexion, instability, episodes of locking, or joint effusion. (v) The examiner should provide any necessary testing to determine if the Veteran's left and right knee disabilities are manifested by any neurological impairments, and, if so, which nerves are involved, the extent of the impairment (mild, moderate, moderately severe, severe incomplete, or complete paralysis of the affected nerve), and provide an estimate as to when the condition began. (b) Second, the examiner should also provide retrospective findings per Correia and Sharp, level of instability, and any meniscal symptoms. (i) Specifically, the examiner should estimate the amount in degrees of range of motion lost due to pain in both weightbearing and non-weightbearing positions, and on both active and passive motion experienced by the Veteran at the time of VA examinations conducted in January 2011, July 2012, April 2016, December 2020, and June 2021, for both knees. (ii) The examiner should estimate the amount in degrees of range of motion lost due to flare-ups experienced by the Veteran at the time of VA examinations conducted in January 2011, July 2012, April 2016, December 2020, and June 2021, for both knees. (iii) The examiner should provide an opinion as to the severity of instability of the Veteran's right and left knees (absent, slight, moderate, severe), at the time of VA examinations conducted in January 2011, July 2012, April 2016, December 2020, and June 2021. (iv) The examiner is asked to identify any prior symptoms of a meniscal condition of the right and left knee, to include pain with extension, pain with flexion, instability, episodes of locking, or joint effusion, at the time of VA examinations conducted in January 2011, July 2012, April 2016, December 2020, and June 2021. Where applicable, the examiner should identify when any change in disability level first arose. If the examiner cannot provide some or all of such opinions, the examiner must make clear that he or she has considered all relevant, procurable data (to include the Veteran's statements), but that any member of the medical community at large could not provide such an opinion without resorting to speculation. Corey Bosely Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morford, Associate 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.