Citation Nr: 21006171 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 12-18 437 DATE: February 3, 2021 REMANDED Entitlement to a rating greater than 10 percent for status post arthroscopic exam of right knee with removal of torn cartilage and residuals, rated as limitation of motion under Diagnostic Code 5260, is remanded. Entitlement to a rating greater than 10 percent for patellofemoral pain syndrome, left knee, with history of chondromalacia, patella, rated as limitation of motion under Diagnostic Code 5260, is remanded. Entitlement to a separate rating for instability, right knee, rated under Diagnostic Code 5257, is remanded. Entitlement to a total disability based upon individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from July 1980 to July 1983 and from October 1985 to April 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). The Board denied, as relevant here, increased ratings for the Veteran's bilateral knee disabilities April 2018. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In July 2019, the Court granted a Joint Motion for Partial Remand (JMPR). Pursuant to the JMPR, the Court vacated the Board’s decision that denied an increased rating for the bilateral knee disabilities, and it remanded the matter to the Board for further proceedings consistent with the JMPR. Additionally, the JMPR raised the prospect of a separate rating for right knee instability, so the Board has added that issue to the title page above. In January 2020, the Board remanded the appeal for additional development, which included securing an addendum medical opinion. In September 2020, the Board again remanded for additional development, finding the AOJ had not complied with its January 2020 remand directives. The Board, at that time, found the evidence raised the issue of unemployability, so it added TDIU to the appeal. To frame the issues, the Board will quote the JMPR here. For the bilateral knee disabilities, it says: Additionally, a remand by the Board “confers on the veteran . . . , as a matter of law, the right to compliance with the remand orders,” and the Board errs when it fails to ensure compliance with the terms of such a remand. Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall, 11 Vet.App. at 271, violation when an examiner made the ultimate determination required by the Board’s remand, because such determination “more than substantially complied with the Board’s remand order”). In the November 2016 Board remand, the Board ordered a new examination to assess Appellant’s knee disabilities and instructed that the examiner was to express any functional loss in terms of additional degrees of limited motion, “to specifically include if [his] pain was not ameliorated by his medication regimen.” [R. at 1515 (1509-17)]. Appellant has a prescription for Tramadol to treat his pain, see [R. at 230 (January 9, 2017, request from pharmacy technician to renew Appellant’s prescription)], but the January 2017 examination does not note whether Appellant was taking pain medication at the time of the examination or discuss whether his pain medication affects his degree of functional loss. [R. at 297-307]. On remand, the Board must discuss whether the January 2017 examination substantially complied with the Board’s prior remand instructions. For the right knee instability issue, it says: “If more than one diagnostic code might reasonably apply to the same condition, and the application of one rather than another might result in a more favorable result for the veteran, the BVA must consider each, and state its reasons or bases for the diagnostic code selected for application.” Merson v. Principi, 3 Vet. App. 305, 306 (1992) (citing 38 U.S.C. § 7104(d)(1) and Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990)). Diagnostic Code (DC) 5257 provides ratings for recurrent subluxation or lateral instability of the knee. 38 C.F.R. § 4.71A. Appellant has reported instability in his right knee. See, e.g., [R. at 2294 (2294-95) (April 2009 MRI study for reported “right knee pain and instability”); 2098 (2096-15) (April 2012 examination, reporting his right knee occasionally gives out on him); 298 (January 2017 examination, reporting occasional instability)]. The Board stated, “Although the Veteran reported that he experienced instability, on objective medical testing, none was shown.” [R. at 19]. However, in English v. Wilkie, 30 Vet. App. 347, 349 (2018), the Court held that “objective medical evidence isn’t required to establish lateral knee instability,” and the Board cannot “categorically find objective medical evidence more probative than lay evidence with respect to this DC without supporting its conclusion with an adequate statement of reasons or bases.” On remand, the Board must provide adequate reasons or bases addressing Appellant’s lay reports of instability in his right knee, keeping in mind that objective medical evidence is not required for a rating under DC 5257. With that as background, the Board finds that remand is warranted for several reasons. First, the Board, in January 2020, ordered the AOJ to obtain an addendum medical opinion to resolve the question the JMPR poses regarding the ameliorative effects of pain medication. Although not expressly mentioned in the JMPR, this premise derives from the Jones v. Shinseki, 26 Vet. App. 56 (2012). In Jones, the Court held that VA committed legal error when it considered the ameliorative effects of medication on the appellant’s disability where those effects were not explicitly contemplated by the rating criteria. Thus, the Court held that where a Diagnostic Code is silent as to the effects of medication, VA may not deny entitlement to a higher disability rating based on the relief provided by medication. Id. The AOJ attempted to comply with the Board's directive, obtaining addendum opinions in February 2020 and March 2020. However, the Board, in September 2020, found these inadequate, and it remanded the appeal for noncompliance with its prior directive. Specifically, the Board ordered "the examiner should specifically address the effect of the Veteran’s prescribed pain medication on his right and left knee disabilities. Additionally, the examiner should express any functional loss in terms of degrees of motion, to specifically include if the pain was/is not ameliorated by his medication regimen." The AOJ again attempted to comply with the Board's directive, obtaining addendum opinions in October 2020 and December 2020. The Board agrees with the AOJ that the October 2020 addendum is inadequate. The more salient issue is the December 2020 addendum. In that addendum, the medical reviewer opined that "the current pain medications reported in VAMC treatment notes, tramadol and meloxicam, are for treatment of chronic pain syndrome. These medications commonly provide decrease or relief of joint pain and therefore are at least as likely as not to impact knee pain symptom of the service-connected knee conditions." She further opined that "there is limited objective evidence in the medical record regarding the impact of pain medication on the service-connected knee condition." The Board, having reviewed four addendum opinions along with the task it assigned to the reviewer, concludes that the Veteran would be best served by having a new examination. Attempting to discern loss of motion, based solely on a review of the claims file, has proven unsuccessful. Providing the Veteran the opportunity to explain, in person, to an examiner where his motion is limited, with and without pain medication, is the most efficient path forward, so the Board will remand on this basis. Second, the Board is unable to adjudicate the TDIU claim until the above development related to the Veteran’s bilateral knee disabilities is completed. See Harris v. Derwinski, 1Vet. App.180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The Board also notes that the Veteran has not submitted a VA Form 21-8940, Request for Employment Information in Connection with Claim for Disability Benefit. The VA should make another attempt to request a TDIU application from the Veteran. The matters are REMANDED for the following action: 1. Request the Veteran submit a TDIU application. 2. Schedule the Veteran for a VA examination to determine the nature and severity of his bilateral knee disabilities, to include any right knee instability. In addition to the customary examination, the examiner must also address the following: a) The Board finds that the December 2020 opinion that the Veteran's use of pain medication provides the Veteran greater range of motion than he would have, but for the use of such medication, highly probative. That said, the Board is now tasked with evaluating the difference in the ranges of motion, i.e., with and without medication usage. Therefore, you must attempt to estimate the Veteran's range of motion with medication usage and range of motion without medication usage. b) In opining, base your estimate on information procured from relevant sources, including the lay statements the Veteran provides after he is asked to describe functional limitation, to include right knee instability. c) If you cannot opine without resort to 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). Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Sopko, 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.