Citation Nr: 21075384 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-11 799 DATE: December 20, 2021 REMANDED Entitlement to a rating in excess of 10 percent for chondromalacia, right knee with retropatellar pain syndrome, is remanded. Entitlement to a rating in excess of 10 percent for chondromalacia, left knee with retropatellar pain syndrome, is remanded Entitlement to a compensable rating for limitation of extension of chondromalacia, right knee with retropatellar pain syndrome, is remanded. Entitlement to a compensable rating for limitation of extension of chondromalacia, left knee with retropatellar pain syndrome, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1991 to September 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2015 rating decision issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). The Veteran testified at a hearing before the undersigned in July 2021. A transcript of the proceeding is of record. The Veteran's bilateral knee disabilities on appeal were characterized as only involving the claims for a compensable rating for limitation of extension. However, since additional separate ratings are assigned for each knee, the scope of the appeal is expanded. And the disabilities and ratings on appeal include all knee disabilities, as shown above. The Veteran is seeking increased ratings for his service-connected bilateral knee disabilities. The Veteran's knees were last evaluated in May 2015. The mere passage of time, alone, since an otherwise adequate examination, does not obligate VA to have the Veteran reexamined simply as a matter of course. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (the passage of time alone, without an allegation of worsening, does not warrant a new examination). However, at the July 2021 Board hearing, the Veteran suggested a worsening of his knee disabilities, describing instability, buckling, severe pain, and decreased range of motion. See Board Hearing Transcript, pp. 3-7. As a result, remand is required to afford the Veteran a more contemporaneous examination to determine the current severity of his service-connected bilateral knee disabilities. The Board further notes that, for the musculoskeletal system, the applicable rating criteria, found at 38 C.F.R. § 4.71a, were amended effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). The old rating criteria applies to rating periods prior to February 7, 2021; however, whichever set of criteria is more favorable applies to periods after February 7, 2021, if the claim was pending prior to this date. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The matters are REMANDED for the following action: 1. Associate with the claims folder updated treatment records. 2. Schedule the Veteran for an examination with an appropriate medical professional to determine the current severity of his service-connected bilateral knee disabilities. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. The claims file and a copy of this remand must be made available to the VA examiner for review. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is asked to describe whether pain, weakness, or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares. 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. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should evaluate instability under the old criteria (evaluating the extent and severity of instability) and under the new criteria, to specifically discuss whether the Veteran has a diagnosed condition involving the patellofemoral complex (consisting of the quadriceps tendon, the patella, and the patellar tendon) with recurrent instability. The examiner's attention is directed towards 2017 MRI results. See Medical Treatment Record Non-Government Facility received on November 24, 2017. (Continued on the next page) The VA examiner should provide a complete rationale for any opinions provided. 3. Readjudicate the claims including consideration of the revised criteria effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Patrick C. Brady, 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.