Citation Nr: 21009523 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 18-30 300 DATE: February 22, 2021 REMANDED Entitlement to a disability rating in excess of 20 percent for left knee instability is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1978 to September 1998. This appeal comes to the Board of Veterans’ Appeals (Board) from a July 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In an October 2019 decision, the Board denied the Veteran’s claims for service connection for a chronic pain syndrome and for disability ratings exceeding 10 percent for degenerative arthritis of the left knee and 20 percent for postoperative PCL and ALC tears of the left knee with instability. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC). In June 2020, CAVC granted a Joint Motion for Partial Remand (JMPR) vacating only the portion of the Board’s decision that denied an increased disability rating for knee instability and remanding the matter to the Board for additional rationale and evidentiary development as necessary. The JMPR notes the Board’s decision lacks an adequate explanation of why it found the Veteran’s knee instability is “moderate,” and the Board would point out that the most recent VA examination dates from April 2018, nearly three years ago.¬ In addition to the deficiencies noted in the JMPR, the Board observes that the rating criteria pertinent to the evaluation of the Veteran’s knee instability has changed effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). Accordingly, additional development is necessary to assist the Board in determining whether the evidence supports assigning the Veteran higher disability ratings under the new criteria. On remand, the Agency of Original Jurisdiction (AOJ) should afford the Veteran a current VA examination of his knees to assess the severity of the instability under both the older criteria and the revised rating criteria. The AOJ should ensure that the examiner provides a discussion with citation to supporting evidence for the examiner’s the characterization of the severity of the knee instability (e.g., explaining why the instability is slight, moderate, or severe under the older criteria). The matters are REMANDED for the following action: 1. The AOJ should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records. The AOJ should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran’s claims file. 2. After associating all outstanding relevant identified records with the Veteran’s claims file, the AOJ should schedule the Veteran for a VA examination by an appropriate clinician to determine the current severity of his service-connected left knee instability. 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 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. If it is not possible to provide a specific measurement 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). The AOJ should review the VA examiner’s opinion and ensure it includes adequate rationale for the assessment of the Veteran’s left knee instability under the rating criteria in effect prior to February 7, 2021 as well as the revised rating criteria effective February 7, 2021. For example, the examiner should explain why the examiner classified the Veteran’s knee instability as slight, moderate, or severe under the older rating criteria with citation to supporting evidence in the record including the Veteran’s lay statements about the instability. The AOJ should ensure that the examiner clarifies whether the severity of the Veteran’s left knee instability satisfies one of the following criteria for a 30 percent rating under the revised rating criteria for knee instability: (i) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation, (ii) a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257, Note (1) and Note (2)). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Duffy, 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.