Citation Nr: 21011162 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 10-41 737 DATE: March 1, 2021 REMANDED Entitlement to an evaluation in excess of 20 percent for chondromalacia patella of the right knee (exclusive of a temporary total evaluation from October 4, 2011, to January 31, 2012) is remanded. Entitlement to an evaluation in excess of 10 percent for chondromalacia patella of the right knee based on limitation of flexion is remanded. Entitlement to an evaluation in excess of 10 percent for chondromalacia patella of the left knee (exclusive of a temporary total evaluation from April 10, 2013, to July 31, 2013) is remanded. Entitlement to an evaluation in excess of 10 percent for chondromalacia patella of the left knee based on limitation of flexion is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1986 to March 1992. He also had earlier service in the United States Army Reserve, which included a period of initial active duty for training from June 1984 to November 1984. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA). A hearing was held before a Decision Review Officer (DRO) of the agency of original jurisdiction (AOJ) in September 2010. A transcript of the hearing is of record. The Veteran requested a hearing before the Board in his October 2010 substantive appeal; however, he cancelled that request in an August 2014 written statement. Thus, his hearing request is considered withdrawn. The Board remanded the above claims, as well as a claim for service connection for a right foot disorder, for further development in January 2018, and the case has since been returned to the Board for appellate review. While the case was in remand status, the AOJ granted service connection for right foot disorders in an April 2020 rating decision. The Veteran has not expressed disagreement with that determination. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). The AOJ also granted a separate evaluation for residual surgical scars of the knees in a February 2017 rating decision, and the Veteran clarified he was not appealing that determination. See June 2017 report of general information. On review, the Board finds that additional development is necessary prior to final adjudication of the Veteran’s claims. In the January 2018 remand, the Board requested a new VA knees examination to include testing consistent with the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016) (concluding that 38 C.F.R. § 4.59 requires VA examinations to include joint testing for pain on both active and passive range of motion, as well as with weight-bearing and nonweight-bearing), as well as a retrospective opinion as to those measurements for the other VA examinations conducted during the appeal period. It was requested that, if the examiner was unable to provide that opinion, he or she should clearly explain why that is so. The Veteran was provided VA examinations in April 2018 (with June 2019 and August 2019 addendum opinions) and October 2020. The 2018/2019 VA examiner provided an incomplete retrospective opinion, noting that the prior VA examination reports from 2003 to 2010 do not provide information on the measurements other than active range of motion (i.e., the reason the opinion was requested). The 2020 VA examiner did not address the requested retrospective opinion question. In addition, it does not appear that the complete results were included in that examination report, such as whether passive range of motion results were the same as the range of motion measurements. A VA examiner will also be able to identify any relevant findings consistent with the amended rating criteria for the knees effective February 7, 2021, given that the Veteran’s bilateral knee disabilities are currently evaluated in part under Diagnostic Code 5257, one of the amended provisions. Based on the foregoing, another VA examination is needed. Regarding the TDIU claim, the Veteran submitted VA Form 21-8940s in 2009 and 2010 for employment as recently as 2008, and corresponding employer responses were received in October 2009. The record indicates that the Veteran has had employment since that time, as detailed in the directives below, and updated information is needed in this regard. The case is REMANDED for the following actions: 1. Obtain VA medical records from November 2020 to present. 2. Schedule the Veteran for a VA examination to ascertain the current severity and manifestations of his service-connected chondromalacia patella with limitation of flexion of the left and right knees. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the prior VA examination reports dated from 2009 to 2020. The examiner should report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria, including the revised criteria effective February 7, 2021. The examiner should provide the range of motion of the left and right knees in degrees on active motion, passive motion, weight-bearing, and nonweight-bearing. If the measurements on active and passive motion are the same, the examiner should so state. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should provide an explanation in the report. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability (including any additional limitation of motion) due to these factors. The examiner should also address the following for the other VA examinations conducted during the appeal period from 2009 to 2020 where applicable: Whether the range of motion measurements on passive motion, weight-bearing, and nonweight-bearing can be estimated where not actually measured. If the examiner is unable to provide a retrospective opinion as to these specific measurements, he or she should provide an explanation for this determination in the report. 3. Obtain updated employment history for the TDIU claim. The record indicates that the Veteran has been employed at various times since the dates provided in the 2009 and 2010 VA Form 21-8940s. See, e.g., November 2014 VA treatment provider written statement (received in February 2015); January 2015 VA record (left job doing maintenance in an apartment complex in September 2014); June 2015 VA examination report (He is currently unemployed and looking for work. He last worked at a drug and alcohol rehabilitation center.); August 2018 VA record (last employed in 2012 as a quality control inventory worker); February 2020 Veteran written statement (reported last working in 2019) and June 2020 VA treatment record (currently employed as a social rehab tech). Ask the Veteran to complete an updated VA Form 21-8940 reflecting all employment since 2010. The Veteran should also provide information as to his earnings for each year from 2009 through 2020 (i.e., earnings statement from the Social Security Administration or copies of his tax returns), so that it can be determined whether any employment he has had resulted in only marginal income. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Postek, 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.