Citation Nr: 21075000 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 15-41 451 DATE: December 17, 2021 ORDER Entitlement to an effective date prior to July 30, 2012 for the grant of service connection of right knee strain is denied. Entitlement to an effective date prior to July 30, 2012 for the grant of service connection of left knee strain is denied. Entitlement to an effective date prior to July 30, 2012 for the grant of service connection of tinnitus is denied. Entitlement to an effective date prior to July 30, 2012 for the grant of service connection for osteoarthritis of the lumbar spine is denied. Entitlement to an effective date prior to July 30, 2012 for the grant of service connection for a cervical spine disability is denied. Entitlement to an effective date prior to July 30, 2012 for the grant of service connection for allergic rhinitis is denied. REMANDED Entitlement to a rating in excess of 10 percent for a right knee strain is remanded. Entitlement to a rating in excess of 10 percent for a left knee strain is remanded. Entitlement to a separate rating for right knee instability in remanded. Entitlement to a separate rating for left knee instability is remanded. FINDINGS OF FACT 1. Entitlement to service connection for a right knee strain was denied in an August 2004 rating decision. 2. The Veteran did not submit a valid notice of disagreement or appeal the RO's decision to decline to accept correspondence as a notice of disagreement and did not submit new and material evidence within one year, and the decision became final in August 2005. 3. Since that time, the Veteran's most recent application for entitlement to service connection for right knee strain is date-stamped July 30, 2012. 4. Entitlement to service connection for a left knee strain was denied in an August 2004 rating decision. 5. The Veteran did not submit a valid notice of disagreement or appeal the RO's decision to decline to accept correspondence as a notice of disagreement and did not submit new and material evidence within one year, and the decision became final in August 2005. 6. Since that time, the Veteran's most recent application for entitlement to service connection for right knee strain is date-stamped July 30, 2012. 7. The Veteran's VA Form 21-526(b) seeking service connection for tinnitus is date-stamped July 30, 2012. 8. Entitlement to service connection for osteoarthritis of the lumbar spine was denied in an August 2004 rating decision. 9. The Veteran did not submit a valid notice of disagreement or appeal the RO's decision to decline to accept correspondence as a notice of disagreement and did not submit new and material evidence within one year, and the decision became final in August 2005. 10. Since that time, the Veteran's most recent application for entitlement to service connection for osteoarthritis of the lumbar spine is date-stamped July 30, 2012. 11. The Veteran's VA Form 21-526(b) seeking service connection for cervical spine disability is date-stamped July 30, 2012. 12. The Veteran's VA Form 21-526(b) seeking service connection for allergic rhinitis is date-stamped July 30, 2012. CONCLUSIONS OF LAW 1. The August 2004 rating decision denying service connection for a right knee strain is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. The criteria for an effective date earlier than July 30, 2012 for the grant of service connection for a right knee strain have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. 3. The August 2004 rating decision denying service connection for a left knee strain is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 4. The criteria for an effective date earlier than July 30, 2012 for the grant of service connection for a left knee strain have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. 5. The criteria for an effective date earlier than July 30, 2012 for the grant of service connection for tinnitus have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. 6. The August 2004 rating decision denying service connection for osteoarthritis of the lumbar spine is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 7. The criteria for an effective date earlier than July 30, 2012 for the grant of service connection for osteoarthritis of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. 8. The criteria for an effective date earlier than July 30, 2012 for the grant of service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. 9. The criteria for an effective date earlier than July 30, 2012 for the grant of service connection for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Army from July 1998 to September 2002 and from February 2008 to February 2009. In a September 2018 decision, the Board denied effective dates prior to July 30, 2012 for service connection for right and left knee strains. In pertinent part, the Board found that while there is evidence of right and left knee strain prior to July 30, 2012, the date of receipt of the Veteran's last service connection claim was July 30, 2012. Here, the Board noted that the assignment of an effective date of July 30, 2012, as the later of when entitlement arose and when the claim was received, comports with the governing regulation as to effective dates. See 38 C.F.R. § 3.400 (b)(2)(i). In a January 2020 decision, the Board denied effective dates prior to July 30, 2012 for service connection for tinnitus; osteoarthritis of the lumbar spine; a cervical disability; and allergic rhinitis. Here, the Board noted that the assignment of an effective date of July 30, 2012, as the later of when entitlement arose and when the claim was received, comports with the governing regulation as to effective dates. See 38 C.F.R. § 3.400 (b)(2)(i). The Veteran appealed the September 2018 Board decision to the United States Court of Appeals for Veteran's Claims (Court). In May 2020, the Court issued a Memorandum Decision which vacated the issues of entitlement to an effective date prior to July 30, 2012 for the grants of service connection for right knee strain and left knee strain. The Court found that the Board had failed to provide an adequate statement of reasons for finding that an August 2004 rating decision was final and instructed the Board to explain its effective-date determination. The Veteran appealed the January 2020 Board decision to the Court, which resulted in a March 2021 Joint Motion for Remand (JMR). Regarding the 4 above-articulated claims for effective dates prior to July 30, 2012 for grants of service connection, the parties to the JMR concurred that they were "inextricably intertwined" with the May 2020 Memorandum Decision. Consequently, the Board addresses these 6 issues together as they present common issues of fact and law. EFFECTIVE DATES The Veteran has asserted that he is entitled to an effective date prior to July 30, 2012 for grants of service connection for right knee strain; left knee strain; tinnitus; osteoarthritis of the lumbar spine; a cervical spine disability; and allergic rhinitis Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. The effective date of an award of service connection shall be the day following the date of discharge or release if application is received within one year from such date of discharge or release. Otherwise, the effective date is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). For reopened claims, the effective date is generally the date of a claimant's petition to reopen the claim, or the date entitlement arose, whichever is later. 38 C.F.R. §§ 3.156(a), 3.400(r). However, there is an exception when "VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim." 38 C.F.R. § 3.156(c)(1). An award based upon all or in part on such records is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. 38 C.F.R. § 3.156(c)(3). Under 38 C.F.R. § 3.156 (c)(2), service department records do not include records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center (JSRRC), or from any other official source. VA regulations provide that the term "claim" and "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). A sympathetic reading as to all potential claims raised by the evidence is required. Szemraj v. Principi, 357 F. 3d 1370, 1373 (Fed. Cir. 2004). The Board, however, is not required to conjure up issues that the Veteran did not raise. See Brannon v. West, 12 Vet. App. 32 (1998). Notably, a VA failure of a duty to assist a Veteran or even the existence of grave procedural error do not render a VA decision non-final. See Cook v. Principi, 318 F. 3d 1334, 1348 (Fed. Cir. 2002). Discussion and Analysis A review of the record shows that the Veteran first filed a claim for service connection for his bilateral knee strains in January 2004. He also submitted claims for service connection for left hand, left ankle, back, sinus, and hearing disabilities. In his January 23, 2004 VA Form 21-527, the Veteran indicated that his bilateral knee strain occurred in October 2000, with treatment commencing on September 19, 2001 at Fort Bragg, North Carolina. On July 30, 2012, VA received a VA Form 21-526(b) (Veteran's Supplemental Claim for Compensation). Here, the Veteran indicated that he desired to reopen his claims for a "back condition, bilateral ear condition, and bilateral knee condition." Additionally, the Veteran sought service connection for "PTSD [posttraumatic stress disorder], right hand condition, ringing in both ears, shortness of breath, traumatic brain injury, [and] sleep apnea." See July 30, 2012 VA 21-526b. Veteran's Supplemental Claim. In an August 2004 rating decision, the Regional Office (RO) denied service connection for the contended bilateral knee strain and all other claimed disabilities. In this decision, the RO noted that it would reconsider this denial if the Veteran provided medical evidence that discloses that he had a bilateral knee strain (and as the case her "back condition") while in service and a current bilateral knee disorder or back condition which is/are directly due to military service. 38 C.F.R. § 20.201 (2005). In the notification letter, the RO advised that if the Veteran did not agree with the decision, he should write and explain why. On March 31, 2005, the Veteran submitted a communication, which states: "This letter is to inform the VA that I am in disagreement with the decision to deny my disability claim." See March 31, 2005 correspondence. The word "claim" was singular, and the Veteran did not indicate the date of the decision with which he disagreed. In the chronology of correspondence, it is reasonable that the Veteran was referring to the August 2004 decision because it was the only one recently issued. However, multiple issued were addressed in this decision. In turn, the RO sent the Veteran a letter on April 8, 2005. In pertinent part, the RO indicated that the Veteran's March 31, 2005 communication did not qualify as a valid notice of disagreement for the purposes of initiating an appeal. The RO explained as follows: Since your statement does not indicate the specific determinations with which you disagree, it does not qualify as a valid "notice of disagreement for the purpose of initiating an appeal. You or your representative may file a Notice of Disagreement by any specific determinations with which you disagree. Please state what notification letter/rating decision you are referencing and what specific issues you are in disagreement with on the referenced decision. In order to appeal to the Board of Veterans' Appeals you must provide this information within 60 days or within one year of the date we advised you of the disputed determination, whichever is later. Our determination that you have not filed a valid notice of disagreement is appealable. The enclosed VA Form 4107 explains your right to disagree with that decision. April 8, 2005 RO letter. And, as noted above, on July 30, 2012, the RO received the Veteran's supplemental claim (VA Form 2012 VA 21-526b.) In a December 11, 2013 rating decision, the RO granted service connection for right knee strain; left knee strain; tinnitus; osteoarthritis of the lumbar spine; and cervical strain (cervical spine disability). In a December 19, 2013 rating decision, the RO granted service connection for allergic rhinitis. The RO assigned a June 30, 2012 effective date for all 6 disabilities. Regarding the Veteran's tinnitus claim, he contends that tinnitus should be interpreted as a component of his January 2004 claim for hearing loss. Even applying the most sympathetic interpretation of the evidence of record, the Board disagrees with the Veteran. Szemraj, 357 F. 3d 1370 Tinnitus is a separate and distinct disability from hearing loss. Monzingo v. Shinseki, 26 Vet. App. 97, 104-05 (2012). More specifically, he Veteran's January 2004 claim was for a hearing disability, not tinnitus. Moreover, the August 2004 rating decision adjudicated hearing loss, not tinnitus. The record at the time of this denial was bereft of any indication of tinnitus. In fact, the oldest record concerning tinnitus was an August 2009 Statement of Examination and Duty Status. Not only was this particular record not in existence at the time of the August 2004 hearing disability denial, but it was also not associated with the record until January 2019. Moreover, at no point, either prior to, or immediately after, the August 2004 denial, did the Veteran specify that he was suffering from tinnitus or ringing in the ears. Consequently, entitlement to service-connection for tinnitus, claimed as ringing in the ears, is deemed a new claim precluding the applicability of 38 C.F.R. § 3.156 (c)(1). In its May 2020 Memorandum Decision, the Court noted that the relevant regulation herein "[p]rovides that 'a written communication from a claimant that expressed dissatisfaction or disagreement with as rating decision and a desire to contest it 'will constitute a notice of disagreement.'" 38 C.F.R. § 20.201 (2005). The full text of the regulation is as follows: A written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result will constitute a Notice of Disagreement. While special wording is not required, the Notice of Disagreement must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review. If the agency of original jurisdiction gave notice that adjudicative determinations were made on several issues at the same time, the specific determinations with which the claimant disagrees must be identified. For example, if service connection was denied for two disabilities and the claimant wishes to appeal the denial of service connection with respect to only one of the disabilities, the Notice of Disagreement must make that clear. (emphasis added). 38 C.F.R. § 20.201 (2005). Moreover, 38 C.F.R. § 19.26 (2005) stipulates that "[w]hen a NOD is received following a multiple issue determination and it is not clear which issue, or issues, the claimant desires to appeal, clarification sufficient to identify the issue, or issues, being appealed should be requested from the claimant or his or her representative." Id. "Whether a notice of disagreement is adequate, it is an appealable issue." 38 C.F.R. § 19.28 (2005). The Veteran contends that a response was not required because more specific instructions were added to 38 C.F.R. § 19.26 in 2010 that continued to task the RO with requesting clarification but permitted oral or written responses and provided time limits for those responses. There is nothing to suggest that some response was not required in 2005. If it were not required, the 2005 regulation would be meaningless. Moreover, the RO's April 2005 letter made it clear that a response was required, and that the Veteran could appeal the decision that declined to accept his notice of disagreement or submit new and material evidence. He did not do any of the three actions. Applying these regulations to the Veteran's March 31, 2005 communication and the RO's April 20055 letter: (1) the Veteran's written [typed] communication expressed disagreement with "a" rating decision; (2) the rating decision [which the Veteran did not identify by date] involved more than one issue [bilateral knees]; and (3) in its April 8, 2015 letter, the RO sought clarification sufficient to identify the issue, or issues, being appealed from the Veteran. Thus, with the regulatory contexts of 38 C.F.R. § 20.201 (2005) and 38 C.F.R. § 19.26 (2005), the Veteran's March 31, 2005 communication did not rise to the level of constituting an NOD at the point that the Veteran failed to respond to the RO's April 8, 2015 letter, which sought clarification as to both the rating decision and which issues within that identified rating decision the Veteran disagreed. While the record shows that the August 2004 rating decision is temporally closest to the Veteran's March 31, 2005 communication, this rating decision denied entitlement to service connection for 6 contended disabilities. And, from March 31, 2005 through the date-stamped receipt of the Veteran's VA Form 21-526b on July 30, 2012 (a period of more than 7 years), the Veteran failed to identify the decision or any specific issue whatsoever. Through this application of the above-cited regulations, which were in effect in 2005, and the evidence of record, the Board finds that the August 2004 rating decision became final in August 2005 because the Veteran did not produce an NOD that accorded with 38 C.F.R. § 20.201 (2005) and 38 C.F.R. § 19.26 (2005). See 38 U.S.C. § 7105; 38 C.F.R. § 20.302. The Board has carefully scrutinized the evidence of record and finds that even the most refined tactics of reading and the most sympathetic modes of interpretation fail to disclose intent on the Veteran's part to appeal the denials of service connection for the bilateral knees and osteoarthritis of the spine prior to receipt of the July 30, 2012 VA Form 21-526b. See Szemraj 357 F. 3d 1370. Likewise, in addition to tinnitus, a sympathetic interpretation fails to disclose any intent on the part of the Veteran to file service connection claims for either a neck disability or allergic rhinitis prior to receipt of the July 30, 2012 VA Form 21-526b. Id. In his July 2012 supplemental claim, the Veteran acknowledged that his claim for ringing in the ears was for a new disability and that his claims for a back condition, bilateral ear condition, and bilateral knee conditions were to reopen previously denied disabilities. Although the Court did not base its reasoning upon counsel's arguments that 38 C.F.R. § 20.201 (2005) and 38 C.F.R. § 19.27 (2005) encompass just about all "terms which could be reasonably construed" as disagreement with a determination and a desire for its review, the Board feels obligated to respond with argument in counter-position. In Medrano v. Nicholson, 21, Vet. App. 165, 171 (2007), the Court noted that the Court (not than the Board as counsel posits) is not permitted to reverse findings of fact favorable to a claimant made by the Board. Id. at 170. Counsel also posits Anderson v, Principi, 18 Vet. App. 371, 375 to support a highly broadened, sympathetic, and extraordinary liberal interpretation of effective dates. In Anderson, the Court held that specific identified written communications (letters addressed to the RO) that were one day apart "expressed dissatisfaction with a February 1996 RO decision regarding the effective assigned for [...] service-connected tinnitus." Id. Indeed, this factual scenario is distinguishable from a communication such as that of the Veteran which identifies no specific disability. ("This letter is to inform the VA that I am in disagreement with the decision to deny my disability claim." See March 31, 2005 correspondence.) Consequently, counsel's point that "if the veteran's statement in Anderson was sufficient to express his intent to seek appellate review, [the Veteran's] assertion that he was 'in disagreement with the decision to deny [his] disability claim" is less-than-candid. The clearly identified effective date of a tinnitus claim is most clearly not an analog to possible, hence unclear issues of bilateral knee strains; left hand; left ankle, back, sinus, and/or hearing disabilities. The plain language of 38 C.F.R. § 20.201 (2005) created the mandatory requirement that, "[i]f the agency of original jurisdiction gave notice that adjudicative determinations were made on several issues at the same time, the specific determinations with which the claimant disagrees must be identified." Id. As VA Office of General Counsel argued the regulatory history of 38 C.F.R. § 20.201 (2005) highlights the obligatory elements of a valid NOD as of 2005. In summarizing the applicable provisions of the Federal Register (see Appeals Regulations; Rules of Practice, 57 Fed. Reg, 4088, 4109 (Feb. 3, 1992) (codified 38 C.F.R. § 20.201 (1992)), VA acknowledged that NODs are construed liberally but that they must identify specific determinations at the same time because it is vital that the [Board] be able to tell which issues have been appealed when several determinations have been made which are appealable." Id. Here, again, the Veteran failed to identify with which determinations he disagreed, and the Veteran never responded to the RO's April 2005 seeking clarification as to the specific issues with multiple claims for bilateral knee strains; left hand; left ankle, back, sinus. and/or hearing disabilities. The Veteran contends that the Board's January 2020 decision conceded that the "May 2005" correspondence 'indicated disagreement with the RO's denial.'" Not only has the Court vacated this decision, but the Board made no such concession and fully explained why the RO did not find it valid. The Veteran also cites the Court's May 2020 Memorandum Decision as already finding that the RO's letter was erroneous and that finding a deficiency was at odds with the pro-veteran canon causing a trap for the unwary. Nevertheless, the Court did not reverse the Board decision nor invalidate the regulations but rather vacated and remanded the matter for the Board to provide additional explanation for its findings. The Board finds no trap for the unwary as the RO was following the regulations and fully informed the Veteran of what was required and this three options. The only trap might be for all other veterans who do not know that regulations and requests for follow up on claim need not be followed because of the pro-veteran nature of the system and sympathetic reading of correspondence, which might apply had the RO done nothing. The Veteran contends that the regulations did not require a response interpreted an example in the regulation to mean that a response was required only to narrow the scope of the appeal. The Board finds that this example does not negate the provisions of the regulation but only suggests what the Veteran might do if he so desired. The Veteran cites Comer v Peake, 552 F.3d 1362 (Fed Cir., 2009) for the principle that a pro-se veteran's appeal submissions sympathetically. In this case, the issue was jurisdiction to consider whether a claim for an earlier effective dated for an increased rating included a claim for an earlier date for a total disability rating based on unemployability because the record had contained evidence of unemployability. The Board recognizes that sympathetic consideration may be appropriate in some cases but not this one. This case is distinguishable. It is not about seeking the highest possible rating but rather specific to the matter of what issues are on appeal as a matter of jurisdiction. The regulation provides for sympathetic reading. The RO did not reject the notice of disagreement out of hand, but RO offered the opportunity to the Veteran to clarify, and he did not. Moreover, the RO explained that the Veteran could appeal the decision that was not valid. He did not. The regulatory scheme as a whole, particularly the differences between the requirements of NODs and substantive appeals, further supports that plain language of 38 C.F.R. § 20.201 required Appellant to specify which issues he was appealing. See Vazquez-Claudio v. Shinseki, 713 F.3d 112,115 (Fed. Cir. 2013)(stating the Court "must read the disputed language in the context of the entire regulation as well as other related regulatory sections in order to determine the language's plain meaning"). The Veteran also contends that no response was require in 2005 because regulations were later changed to add that a claimant must respond. This has no merit. Clarifying language in later regulations to be more specific does not change the plain language requirement in the 2005 regulation for the RO to ask for clarification and provide multiple options and that the specific issues must be identified. The 2005 regulation would be meaningless if a response was not necessary. And again, the Veteran could appeal any finding of invalidity. Having not appealed the finding of invalidity, it can be attacked only collaterally. DiCarlo v. Nicholson, 20Vet.App. 52, 57-58 (2006) As an effective date will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400, the Board finds that entitlement to an effective date prior to July 30, 2012 for the grants of service connection for right knee strain; left knee strain; tinnitus; osteoarthritis of the lumbar spine; and allergic rhinitis must be denied. REASONS FOR REMAND Rating in excess of 10 percent for a right knee strain Rating in excess of 10 percent for a left knee strain Separate rating for right knee instability Separate rating for left knee instability The parties to the March 2021 JMR concurred that the May 2016 and July 2019 VA knee examinations were inadequate for adjudication purposes. Specifically, the parties found that the VA clinicians failed to address significant loss of functional ability during flare-ups and during repetitive use over time appropriately. See Sharp v. Shulkin, 29 Vet. App. 26, 33-36 (2017). Likewise, the parties agreed that the VA clinicians had not assessed the indices spelled out in Correia v. McDonald, 28 Vet. App. 158, 170 (2016). Lastly, the parties to the JMR concurred that the Board had failed to provide adequate reasons or bases for determining that the Veteran did not warrant separate ratings for right knee instability and left knee instability under 38 C.F.R. § 4.71(a) Diagnostic Code 5257. Here, the parties noted that the Board failed to address the Veteran's lay endorsement of using bilateral knee braces for stability adequately. The parties emphasized the applicability of English v. Wilkie, 30 Vet. App. 347, 352-53 (2018) to consideration of findings of knee instability under 38 C.F.R. § 4.71(a) Diagnostic Code 5257. Before the Board can adequately assess whether the Veteran warrants separate ratings for right knee instability and/or left knee instability, retrospective development is necessary to ascertain whether the deficiencies in the May 2016 and July 2019 VA knee examinations impact any and all degrees of right and/or left knee instability. See Chotta v. Peake, 22 Vet. App. 80, 85 (2008) (when there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted). The matters are REMANDED for the following actions: 1. Contact the Veteran and his representative to ascertain whether there are any outstanding private records related to both service-connected right knee strain and left knee strain and/or contended right knee instability and left knee instability. If affirmatively indicated, prepare releases, obtain the records, and associate the records with the claims file. The RO must make two attempts to obtain these relevant records unless the first attempt demonstrates that further attempts would be futile. Should VA not obtain any private records (as indicated), the RO must (1) inform the Veteran of such unobtained records (2) tell the Veteran steps taken to obtain them, and (3) tell the Veteran that the claim will be adjudicated without the records. See 38 U.S.C. § 5103A(b)(2)(B). 2. Obtain any and all outstanding VA treatment records, progress notes and associate the records with the claims file. 3. Arrange for a VA retrospective opinion with an appropriate clinician to assess the severity of both service-connected right knee strain and left knee strain and/or contended right knee instability and left knee instability. The clinician must review the claims file and indicate such review within the body of the opinion. The clinician must address the deficiencies, as noted above, and as noted in the March 2021 JMR, in the May 2016 and July 2019 VA knee examination reports. The clinician should address the following: a. Describe the nature and severity of the Veteran's right knee and left knee, including any and all diagnoses pertaining to either knee, at the time of the May 2016 and July 2019 VA knee examinations. b. As appropriate for the right knee and left knee, assess both active and passive range of motion, as well as range of motion on weight bearing and non-weight bearing. If possible, estimate range of motion, to include after repetitive use and during flare ups in terms of degrees based upon observations in the examination reports and the Veteran's lay reports of symptoms. c. The clinician must specifically address the Veteran's endorsement of using bilateral knee braces for stability. The clinician must consider that "nothing in Diagnostic Code 5257 [knee instability] provides that objective medical evidence is required or is to be favored over lay evidence." See English, 30 Vet. App. 347. d. If it is not possible to provide a specific measurement, or an opinion regarding repetitive use, flare-ups, symptoms, or functional impairment without speculation, the clinician 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 clinician (does not have the knowledge or training). e. Discuss the functional limitations, if any, of the Veteran's right knee strain and left knee strain and/or contended right knee instability and left knee instability with consideration of the Veteran's lay statements regarding his experienced limitations due to symptomatology at the time of the May 2016 and July 2019 VA knee examinations. 4. The clinician should provide a complete rationale for all opinions provided. If an opinion cannot be rendered without to resorting to mere speculation, the clinician should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. J. Komins, 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.