Citation Nr: 21007131 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 09-44 974 DATE: February 8, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for status post anterior cruciate ligament reconstruction of the right knee with degenerative joint disease prior to February 15, 2012, and in excess of 20 percent thereafter, is remanded. Entitlement to a disability rating in excess of 10 percent left knee degenerative arthritis is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1986 to January 2000. These matters come to the Board of Veterans’ Appeals (Board) from a December 2007 rating decision which, in pertinent part, continued a 10 percent evaluation each for the Veteran’s right and left knee disabilities. In May 2011, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing. A copy of the transcript is of record. In December 2011, the Board remanded the issues for further development, to include obtaining a VA examination and medical opinion. In a September 2012 rating decision, the RO granted an increased 20 percent rating for the Veteran’s right knee disability, effective February 15, 2012. In March 2013, the Board remanded the issues for further development, to include obtaining the Veteran’s vocational rehabilitation records and relevant ongoing VA treatment records. In a November 2013 decision, the Board denied increased ratings for the Veteran’s right and left knee disabilities. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In a July 2014 order, the Court granted the parties’ joint motion for partial remand, vacated the Board’s November 2013 decision as it pertained to increased ratings for the Veteran’s right and left knee disabilities, and remanded the claims to the Board for adjudication consistent with the joint motion. In October 2014 and February 2017, the Board remanded the issues for further development, to include obtaining VA examinations and medical opinions. In an August 2017 decision, the Board denied increased ratings for the Veteran’s right and left knee disabilities. The Veteran appealed to the Court and in a July 2018 order, the Court granted the parties’ joint motion for remand, vacated the Board’s August 2017 decision, and remanded the claims to the Board for adjudication consistent with the joint motion. In November 2019, the Board remanded the issues for further development, to include obtaining a VA examination and medical opinion. The claims of entitlement to a disability rating in excess of 10 percent for status post anterior cruciate ligament reconstruction of the right knee with degenerative joint disease prior to February 15, 2012, and in excess of 20 percent thereafter, and entitlement to a disability rating in excess of 10 percent left knee degenerative arthritis are remanded. The Board cannot make a fully-informed decision on the claims of entitlement to increased ratings for the Veteran’s right and left knee disabilities. In a November 2019 decision, the Board found the most recent March 2017 VA examination was inadequate pursuant to Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017), and incomplete as the VA examiner did not elicit a complete description from the Veteran regarding his bilateral knee instability. The Board remanded the claims so that the Veteran could be afforded a new VA examination and a description obtained on his bilateral knee instability. The examiner was to provide an opinion as to whether instability reported by the Veteran was consistent with the objective manifestations of such found on examination and provide a rationale for any distinction in the objective assessment from the reported subjective symptoms. A retrospective opinion was to also be obtained as to the severity of the Veteran’s bilateral knee disability since February 28, 2006, including whether the Veteran’s range of motion results from the December 2007, March 2010, February 2012, August and November 2015, and March 2017 VA examinations would have been reduced if tested in both active and passive motion and in weight-bearing and nonweight-bearing, as well as the extent of the Veteran’s functional loss during flare-ups during those examinations. The examiner was to take the Veteran’s pertinent lay statements into consideration, including those made during the May 2011 Board hearing. The Veteran was afforded a VA examination in January 2020. The Veteran was unable to complete initial range of motion testing or repetitive use testing on the right knee due to pain and while the examiner indicated that pain significantly limited functional ability with repeated use over time and during flare-ups, the examiner was unable to describe such in terms of range of motion. The Board notes that the examiner indicated that the examination was not being conducted during a flare-up. However, a VA treatment record dated several weeks later in January 2020 reflects the Veteran reported bilateral knee pain rated at 2 out of 10. Thus, it is not clear whether pain and limitation of motion during the January 2020 examination is representative of a flare-up. Additionally, as to a retrospective opinion regarding functional loss during flare-ups during previous examinations, while the January 2020 examiner found that the Veteran would not have been prevented from functioning in an occupational environment, the examiner did not attempt to describe functional loss during flare-ups in additional range of motion lost or explain why such an opinion could not be given, as directed by the Board’s November 2019 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order). As to instability, the January 2020 VA examiner indicated there was a history of lateral instability of the left knee, and upon examination, there was medial and lateral instability of the right knee and lateral instability of the left knee. The examiner further explained that due to instability of the knees, particularly the right, the Veteran was prevented from ambulating or climbing without difficulty. As to whether the Veteran’s reported instability was consistent with objective manifestations found upon examination, the examiner indicated that the reported instability of the right knee was consistent with the examination. The examiner did not provide an opinion as to the left knee instability. In an August 2020 addendum opinion given by the January 2020 examiner, the examiner indicated that the January 2020 examination report should have read history of lateral instability of the right knee, rather than the left, and that there was no finding of left knee lateral instability. The Board finds the January 2020 examination report and opinions and August 2020 addendum opinion are internally inconsistent and contradictory. If the January 2020 examination report was incorrect and should reflect no lateral instability of the left knee, this would contradict the examiner’s statements in the January 2020 opinion that instability of the knees prevented the Veteran from ambulating or climbing without difficulty, even if this was mostly due to the right knee (emphasis added). Additionally, if the Board accepts that was no objective finding of left knee instability during the examination, then the examiner failed to provide a rationale for any distinction in the objective assessment from the reported subjective symptoms, as directed by the Board’s November 2019 remand directives. In light of the foregoing, the Board finds that another VA examination is necessary to obtain medical evidence as to the current severity of the Veteran’s bilateral knee disability, including manifestations of instability, and a retrospective opinion as to the severity of the Veteran’s right and left knee disabilities during the December 2007, March 2010, February 2012, August and November 2015, and March 2017 VA examinations.   The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records from August 2020 to present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right and left knee disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. The VA examiner should not only assess the degree of any bilateral knee lateral instability found on examination, but should also elicit from the Veteran a complete description of the instability experience in daily life; thereafter, the VA examiner should provide an opinion as to whether such reported instability is consistent with the objective manifestations of such found on examination, and provide a rationale for any distinction in the objective assessment from the reported symptoms. A retrospective medical opinion should also be obtained addressing the severity of the Veteran’s bilateral knee disability since February 28, 2006 (one year prior to when the Veteran’s claim for increase was filed). The examiner is asked to determine whether the Veteran’s range of motion results from the December 2007, March 2010, February 2012, August and November 2015, and March 2017 VA examinations would have been reduced if tested in both active and passive motion and in weight-bearing and nonweight-bearing. To the examiner’s best ability, the additional range of motion lost should be described in degrees. As the examiner must provide a retrospective opinion, the examiner will necessarily be unable to observe the Veteran during a flare-up. Nonetheless, to the extent possible, the examiner should still provide an opinion regarding the extent of the Veteran’s functional loss during flare-ups as described in his December 2007, March 2010, February 2012, August and November 2015, and March 2017 VA examinations, and his pertinent lay statements, including during the May 2011 Board hearing. To the examiner’s best ability, the additional range of motion lost should be described in degrees based on that information. If it is not possible to provide the requested opinions 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. 3. After completing the above, and any other development as may be indicated, the Veteran’s claims should be readjudicated based on the entirety of the evidence. The regulatory musculoskeletal diagnostic code changes must be applied. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Owen, 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.