Citation Nr: 21011394 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 16-63 498 DATE: March 1, 2021 ORDER A rating of more than 10 percent for limited right knee flexion is denied. A rating of more than 10 percent for limited left knee flexion is denied. A separate 20 percent rating under for moderate subluxation and instability of the right knee is granted. A separate 20 percent rating under for moderate subluxation and instability of the left knee is granted. A separate 20 percent rating for locking and effusion of the right knee is granted. A separate 20 percent rating for locking and effusion of the left knee is granted. REMANDED The issue of service connection for a lower back disorder, to include as secondary to bilateral pes planus and a service-connected bilateral knee disorder, is remanded. The issue of service connection for bilateral pes planus, to include as secondary to a service-connected bilateral knee disorder, is remanded. The issue of service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) and an unspecified depressive disorder, is remanded. FINDINGS OF FACT 1. For the entirety of the appellate period, the Veteran’s right knee disorder manifested with daily flare-ups; difficulty with prolonged standing, walking, running, crawling, lifting, and weight bearing; weakness; fatigue; decreased strength; swelling; painful flexion; reports of “grinding,” locking, and instability; flexion limited to 90 degrees, normal extension, and estimated additional limitation of flexion of 125 degrees during flare-ups and after repetitive use over time; and use of assistive devices including orthotic knee braces and crutches. 2. For the entirety of the appellate period, the Veteran’s left knee disorder manifested with daily flare-ups; difficulty with prolonged standing, walking, running, crawling, lifting, and weight bearing; weakness; fatigue; decreased strength; swelling; painful flexion; reports of “grinding,” locking, and instability; flexion limited to 110 degrees, normal extension, and estimated additional limitation of flexion of 130 degrees during flare-ups; and use of assistive devices including orthotic knee braces and crutches. CONCLUSIONS OF LAW 1. For the entirety of the appellate period, the criteria for a rating of more than 10 percent for limited flexion of the right knee have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326 (a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5260. 2. For the entirety of the appellate period, the criteria for a rating of more than 10 percent for limited flexion of the left knee have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326 (a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5260. 3. For the entirety of the appellate period, the criteria for a separate 20 percent rating for moderate subluxation and instability of the right knee have been approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326 (a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5257. 4. For the entirety of the appellate period, the criteria for a separate 20 percent rating for moderate subluxation and instability of the left knee have been approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326 (a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5257. 5. For the entirety of the appellate period, the criteria for a separate 20 percent rating for locking and effusion of the right knee have been approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326 (a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5258. 6. For the entirety of the appellate period, the criteria for a separate 20 percent rating for locking and effusion of the left knee have been approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326 (a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1990 to September 1996. The Veteran submitted his claims for increased disability ratings of his knees on September 17, 2010. In January 2019, the Board of Veterans’ Appeals (Board) remanded the issues of an increased rating for a bilateral knee disorder, service connection for bilateral pes planus, and an acquired psychiatric disorder. The Board directed the VA Regional Office (RO) to schedule new medical examinations which were completed in October 2019. The January 2019 Board decision also denied service connection for a lower back disorder. The Veteran appealed the specified denial to the United States Court of Appeals for Veterans’ Claims (Court). In December 2019, the Court vacated the January 2019 denial of service connection for a lower back disorder and remanded the Veteran’s appeal to the Board. As outlined in the remand section below, the issue is remanded in order to comply with the Court’s December 2019 Decision. In June 2020, the Board of Veterans’ Appeals (Board) remanded the issue of service connection for a lower back disorder and directed the Regional Office (RO) to defer adjudication until it adjudicated the related issues of service connection for flat feet and increased ratings for a bilateral knee disorder. The Board further directed the RO to consider a medical article submitted by the Veteran in May 2018 and to order an addendum medical opinion, if necessary to decide the claim. After denying the knee and flat feet issues in a June 2020 Supplemental Statement of the Case (SSOC), the RO continued the denial of service connection for a lower back disorder in a July 2020 SSOC. However, the RO did not address the May 2018 medical article or order a new medical opinion. As a matter of law, Veterans are entitled to substantial compliance with Board instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the Board requires an addendum opinion to fully and fairly evaluate the Veteran’s claim and to comply with the Board’s June 2020 remand directives. Additionally, the Board notes that the claims file does not contain the Veteran’s complete service medical and personnel records, including his separation examination, which was noted to be “of record” in a June 1997 rating decision. Other missing records include a March 1996 examination report alluded to in the service medical records, and records relating to the Veteran’s 1995 Medical Board proceedings. Where, as here, relevant service records are missing that may substantiate the Veteran’s claims, the Board is under a heightened duty to assist the Veteran in developing his claims. O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); see also 38 C.F.R. § 3.159(e). Review of the claims file reveals that requests for the Veteran’s personnel file were submitted in November 2002 and in September 2013 specifically to corroborate his Gulf War service. However, there is no indication that attempt was made to obtain missing service medical records, nor did the RO notify the Veteran notified of its inability to obtain those records, issue a formal finding of unavailability, or indicate whether further efforts to obtain the records would be futile. See 38 C.F.R. § 3.159(c)(2). Remand is necessary to fulfill the Board’s heightened duty to assist the Veteran in developing his claims. Increased Ratings Disability ratings are determined by applying criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes (DCs). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. VA assesses the level of disability from one year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as “staged ratings.” See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). Additionally, the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59. Provision 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Under 38 C.F.R. § 4.45, functional loss due to weakened movement, excess fatigability, and incoordination must also be considered. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the criteria discussed in sections 4.40 and 4.45 are not subsumed by the DCs applicable to the affected joint). The provisions of 38 C.F.R. § 4.59 recognize that painful motion is an important factor of disability. Joints that are painful, unstable, misaligned or due to healed injury are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.; see Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that § 4.59 applies to all forms of painful motion of joints, and not just to arthritis). In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In assigning a higher disability rating, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a rating of more than 10 percent for a right knee disorder. The Veteran’s claim for an increased rating for a bilateral knee disorder was received September 17, 2010. Effective September 1996, the Veteran’s right knee disorder has been assigned a minimum 10 percent rating based on painful flexion of the knee. See 38 C.F.R. § 4.59, DC 5260. DC 5260 provides ratings based on limitation of flexion of the leg. Limitation of flexion to 60 degrees warrants a noncompensable (zero percent) rating. Limitation of flexion to 45 degrees warrants a 10 percent rating. Flexion limited to 30 degrees warrants a 20 percent rating. Flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, DC 5260. In an April 2010 private radiological report, the Veteran reported chronic right knee pain which recently increased in intensity. Magnetic resonance imaging (MRI) revealed mild degenerative changes and no evidence of a meniscal tear. The attending radiologist noted erosion and cyst formation in the anterior cruciate ligament (ACL) indicated a possible ACL strain. In a September 2010 primary care note, the Veteran reported chronic bilateral knee pain that was worse in the right than the left. He reported receiving treatment for swelling and pain since March 2010, including right knee injections in April 2010. The attending clinician noted April 2010 MRI of the right knee showed mild osteoarthritis. The Veteran was afforded three VA knee examinations during the rating period. At the October 2010 VA examination, the Veteran reported symptoms of right knee pain, stiffness, weakness, incoordination, decreased speed of joint motion, instability, the right knee “giving way,” locking episodes occurring several times per week, inflammation, warmth, redness, swelling and tenderness. He reported experiencing flare-ups of severe pain every two to three weeks, lasting one to two days in duration. The Veteran indicated flare-ups were caused by excessive physical activity, prolonged standing, and awkward or abrupt movements. He indicated flare-ups rendered him nearly prostrate and were relieved by rest. The Veteran reported instability in both knees and that they “g[a]ve out from time to time.” He indicated he “always” used knee braces and crutches for stability. On initial range of motion (ROM) testing, the Veteran’s right knee had flexion to 90 degrees with objective evidence of pain beginning at 30 degrees, with normal extension. The examiner noted the Veteran had additional pain after repetitive motion, but no additional limitation of motion. The examiner observed that the Veteran had an antalgic gait with poor propulsion. On physical examination, the examiner noted evidence of crepitus, edema, subpatellar tenderness, pain at rest, grinding, a meniscal tear, and guarding of movement. The examiner did not find evidence of locking, effusion (swelling of joints), instability, subluxation (dislocation of the knee from its socket), or ankylosis, and no other abnormalities were noted. The Veteran reported limiting his working hours to two days per week because of his bilateral knee pain. The examiner indicated that functional loss included difficulty lifting and carrying, weakness or fatigue, decreased strength and lower extremity pain. In an August 2016 VA nursing note, the Veteran reported worsening bilateral knee pain at a “4/10.” He denied falling, nearly falling, or having a fear of falling within the past year. At an October 2016 VA examination, the Veteran continued to report chronic bilateral knee pain that was worsened during prolonged walking, kneeling, crawling, and bending. He also reported a “grinding” feeling around his knees, which he indicated was worse in the right knee. He indicated his job required frequent walking and standing. The Veteran denied flare-ups or functional loss or impairment. He reported occasionally using knee braces. Initial ROM testing revealed right knee flexion to 120 degrees with pain, and normal right knee extension. The examiner indicated the Veteran’s abnormal flexion did not result in or cause functional loss. The examiner noted evidence of pain with weight bearing and pain to palpation but did not find evidence of crepitus. The Veteran was able to perform repetitive use testing without any additional loss of ROM. Muscle strength and joint stability testing were normal, and the Veteran did not report a history of recurrent lateral instability, effusion, or patellar subluxation. The Veteran also denied recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairments. The examiner reviewed the notes of the Veteran’s 1995 right knee arthroscopy procedure and concluded the Veteran did not have a meniscal injury, but rather had a small plica removed. The examiner opined that X-rays taken at the 2016 VA examination did not reveal degenerative arthritis and were negative for any knee abnormalities. In a March 2018 VA primary care note, the Veteran reported worsening bilateral knee pain in the past two to three months. The attending physician noted the Veteran wore a custom orthotic knee brace on his right knee and was due for a brace recheck. The physician ordered X-rays of both knees. The Veteran was afforded an additional VA knee examination in October 2019 pursuant to the January 2019 Board remand. At the October 2019 examination, the Veteran reported constant bilateral knee pain that radiated into his ankles. He reported continued use of knee braces, Tylenol and anti-inflammatory medications. The Veteran indicated he has been confined to “sitting jobs” and was unable to do things he used to do, including running, taking long walks, and playing sports with his children. The examiner indicated the Veteran would likely have occupational impairment due to a potential for pain with prolonged weight bearing or repetitive squatting. The Veteran reported daily flare-ups of moderate to severe knee pain that occur for one to five minutes throughout the day. He stated flareups were not caused by anything in particular and were relieved by taking weight off his legs. On initial ROM testing, the Veteran had right knee flexion to 130 degrees with pain and normal right knee extension. The examiner noted there was no evidence of localized tenderness, crepitus, pain with weight bearing or non-weight bearing, or pain on passive ROM testing. The examiner indicated the Veteran’s abnormal right knee flexion did not itself contribute to a functional loss. The Veteran was able to perform repeated use testing without any loss of ROM or pain. Muscle strength and joint stability were normal bilaterally and the Veteran did not have ankylosis or muscle atrophy. The examiner corrected the previous diagnosis of a meniscal tear to status post (s/p) right knee arthroscopy and debridement of plica, explaining that the 1995 arthroscopy did not actually reveal a meniscal tear. The examiner noted the Veteran was not examined immediately after repetitive use over time or during a flare-up, and indicated the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss. However, the examiner opined that pain would cause functional loss and reduced ROM during a flare-up and after repetitive use over time. She estimated that under these circumstances, the Veteran’s right knee flexion would be limited to 125 degrees. Throughout the rating period, the Veteran’s right knee disorder manifested with daily flare-ups; difficulty with prolonged standing, walking, running, crawling, lifting, and weight bearing; weakness; fatigue; decreased strength; swelling; painful flexion; reports of “grinding,” locking, and instability; flexion limited to 90 degrees, normal extension, and estimated additional limitation of flexion of 125 degrees during flare-ups and after repetitive use over time; and use of assistive devices including orthotic knee braces and crutches. Based on DC 5260 alone, these symptoms would not warrant a compensable rating. However, given the Veteran’s painful right knee flexion, daily flare-ups, and additional pain and limitation of motion during flare-ups and after repetitive use over time, the minimum 10 percent rating already in effect is appropriate. See 38 C.F.R. § 4.59, Deluca, supra. A rating of more than 10 percent under DC 5260 is not warranted at any time during the rating period because the Veteran has not demonstrated flexion limited to 45 degrees. See 38 C.F.R. § 4.71a, DC 5260. Each subsequent VA examination has indicated the Veteran’s flexion increased over time and was most recently measured to be 130 degrees. Normal knee flexion is 140 degrees. The Board has considered the Veteran’s reports of bilateral knee “popping,” “grinding,” instability and continued use of custom orthotic knee braces during the rating period. Given these symptoms, the Board will award a separate 20 percent rating under DC 5257 for moderate recurrent instability. See 38 C.F.R. § 4.71a, DC 5257; see also 38 C.F.R. § 4.6 (“Terms such as “mild,” “moderate” and “moderately severe” are not defined in the regulatory criteria, and the Board must make considerations as to their applicability to symptoms reported in the record in a manner that is “equitable and just.”). A rating higher than 20 percent is not warranted under DC 5257 because the Veteran’s instability symptoms are not “severe.” VA treatment records reflect that the Veteran has consistently denied falling, nearly falling, or fear of falling. At his VA examinations, his right knee demonstrated normal muscle strength, reflexes, and joint stability during clinical testing. Additionally, a June 2020 VA treatment record indicates the Veteran secured employment cleaning septic tanks, which he reported entailed “a lot of manual labor.” Given this evidence, only a 20 percent rating for moderate instability is warranted. Additionally, the Board finds the Veteran’s symptoms of bilateral knee swelling, “popping,” and “grinding” warrant approximation of a separate rating under DC 5258. See 38 C.F.R. § 4.71a, DC 5258. DC 5258 provides a single, maximum 20 percent rating for “dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion to the joint.” While the medical evidence shows the Veteran has not had a meniscal injury, he has consistently reported swelling and locking episodes, although these symptoms were not confirmed by clinical testing during his VA examinations. The Board will resolve the benefit of the doubt in the Veteran's favor and award a separate 20 percent rating under DC 5258. This is the highest possible rating under this diagnostic code. The remaining applicable DCs do not warrant any additional separate ratings. A separate rating under DC 5256 is not warranted because no medical provider has found evidence of ankylosis and the Veteran has consistently demonstrated a range of motion in the right knee. 38 C.F.R. § 4.71a, DC 5256. A separate rating under DC 5259 for removal of semilunar cartilage is not warranted. While various medical records note a 1995 right knee meniscal tear, the October 2016 and October 2019 VA examination reports explain that the Veteran’s 1995 arthroscopy revealed a normal meniscus and the correct diagnosis is status post (s/p) right knee arthroscopy and debridement of plica. The Veteran has not had any procedure that actually resulted in removal of semilunar cartilage. A separate rating under DC 5261 for limitation of extension is not warranted because the Veteran’s right knee has consistently demonstrated normal extension and no pain has been noted on extension, specifically. 38 C.F.R. § 4.71a, DC 5261. A separate rating under DC 5262 for tibia or fibula impairment is not warranted as there was no evidence of nonunion or malunion. 38 C.F.R. § 4.71a, DC 5262. A separate rating under DC 5263 is not warranted because the Veteran has never had genu recurvatum (a deformity of the knee joint resulting in the knee being bent backwards). 38 C.F.R. § 4.71a, DC 5263. For these reasons, the preponderance of the evidence is against the assignment of a rating of more than 10 percent under DC 5260 for limited flexion of the right knee during the appellate period. However, the Board will grant separate 20 percent ratings under DCs 5257 and 5258. The Board has considered the Veteran’s July 2020 and November 2020 submissions alleging the October 2019 VA examination was inadequate because it did not provide an opinion as to functional loss during flare-ups as required by Mitchell v. Shinseki, 25 Vet. App. 32 (2011) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Through counsel, the Veteran argued that the examination was inadequate because it not conducted immediately after repetitive use over time. However, the October 2019 VA examiner did in fact opine as to functional loss during flare-ups and after repetitive use over time, and estimated, in terms of degrees, additional reduction in ROM under those circumstances. The examiner included in her report the Veteran’s own reports of functional loss during flare-ups and after repetitive use over time. She did not indicate that her opinions were speculative, or that she was unable to render an opinion out of a reluctance to engage in speculation. Thus, the 2019 VA examination complied with the requirements set forth in the Sharp and Mitchell cases. 2. Entitlement to a rating of more than 10 percent for a left knee disorder. From June 6, 2000 to August 6, 2010, the Veteran’s left knee was assigned a noncompensable rating. Since August 6, 2010, the Veteran’s left knee disorder has been assigned a minimum 10 percent rating based on painful flexion of the knee. See 38 C.F.R. § 4.59, DC 5260. VA treatment records indicate continued treatment for bilateral knee pain since March 2010. At the October 2010 VA examination, the Veteran reported left knee pain, stiffness, weakness, incoordination, decreased speed of joint motion, instability, the left knee “giving way,” locking episodes occurring several times per week, inflammation, warmth, redness, swelling and tenderness. He reported experiencing flare-ups of severe pain every two to three weeks, lasting one to two days in duration. The Veteran indicated flare-ups were caused by excessive physical activity, prolonged standing, and awkward or abrupt movements. He indicated flare-ups rendered him nearly prostrate and were relieved by rest. The Veteran reported instability in both knees and that they “g[a]ve out from time to time.” He indicated he always used knee braces and crutches for stability. On initial range of motion (ROM) testing, the Veteran’s left knee had flexion to 110 degrees with objective evidence of pain beginning at 50 degrees, with normal extension. The examiner noted the Veteran had additional pain after repetitive motion, but no additional limitation of motion. The examiner observed that the Veteran had an antalgic gait with poor propulsion. On physical examination, the examiner noted evidence of crepitus, edema, subpatellar tenderness, pain at rest, grinding, and guarding of movement. The examiner did not find evidence of locking, a meniscal tear, effusion, instability, subluxation, dislocation, or ankylosis, and no other abnormalities were noted. The examiner noted December 2009 and April 2007 left knee X-rays which were negative for any acute fracture, dislocation, effusion, or any other abnormalities. At the October 2016 VA examination, the Veteran continued to report chronic bilateral knee pain that was worsened during prolonged walking, kneeling, crawling, and bending. He also reported a “grinding” feeling in both knees. He indicated his job required frequent walking and standing and reported occasionally using knee braces. Initial ROM testing revealed left knee flexion to 120 degrees with pain, and normal left knee extension. The examiner indicated the Veteran’s abnormal flexion did not result in or cause functional loss. The examiner noted evidence of pain with weight bearing and pain to palpation but did not find evidence of crepitus. The Veteran was able to perform repetitive use testing without any additional loss of ROM. Muscle strength and joint stability testing were normal, and the Veteran did not report a history of recurrent lateral instability, effusion, or patellar subluxation. The Veteran also denied recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairments. The examiner opined that X-rays taken at the 2016 VA examination did not reveal degenerative arthritis and were negative for any knee abnormalities. In a March 2018 VA primary care note, the Veteran reported worsening bilateral knee pain in the past two to three months. The attending physician noted the Veteran was prescribed custom knee braces for both knees but was not wearing a brace on his left knee at the examination. The Veteran was afforded an additional VA knee examination in October 2019 pursuant to the January 2019 Board remand. At the October 2019 examination, the Veteran reported constant bilateral knee pain that radiated into his ankles. He reported continued use of knee braces, Tylenol and anti-inflammatory medications. The Veteran indicated he has been confined to “sitting jobs” and was unable to do things he used to do, including running, taking long walks, and playing sports with his children. The examiner indicated the Veteran would likely have occupational impairment due to a potential for pain with prolonged weight bearing or repetitive squatting. The Veteran reported daily flare-ups of moderate to severe knee pain that occur for one to five minutes throughout the day. He stated flareups were not caused by anything in particular and were relieved by taking weight off his legs. On initial ROM testing, the Veteran had left knee flexion to 135 degrees with pain and normal left knee extension. The examiner noted there was no evidence of localized tenderness, crepitus, pain with weight bearing or non-weight bearing, or pain on passive ROM testing. The examiner indicated the Veteran’s abnormal left knee flexion did not itself contribute to a functional loss. The Veteran was able to perform repeated use testing without any loss of ROM or pain. Muscle strength and joint stability were normal bilaterally and the Veteran did not have ankylosis or muscle atrophy in either knee. The examiner noted the Veteran was not examined immediately after repetitive use over time or during a flare-up, and indicated the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss. The examiner opined that left knee pain, weakness, fatigability or incoordination would not significantly limit functional ability with repeated use over a period of time. However, the examiner opined that left knee pain would cause functional loss and reduced ROM during a flare-up. She estimated that during flare-ups, the Veteran’s left knee flexion would be limited to 130 degrees. Throughout the rating period, the Veteran’s left knee disorder manifested with daily flare-ups; difficulty with prolonged standing, walking, running, crawling, lifting, and weight bearing; weakness; fatigue; decreased strength; swelling; painful flexion; reports of “grinding,” locking, and instability; flexion limited to 110 degrees, normal extension, and estimated additional limitation of flexion of 130 degrees during flare-ups; and use of assistive devices including orthotic knee braces and crutches. Based on DC 5260 alone, these symptoms would not warrant a compensable rating. However, given the Veteran’s painful left knee flexion, daily flare-ups, and additional pain and limitation of motion during flare-ups, the minimum 10 percent rating already in effect is appropriate. See 38 C.F.R. § 4.59, Deluca, supra. A rating of more than 10 percent under DC 5260 is not warranted at any time during the rating period because the Veteran has not demonstrated flexion limited to 45 degrees. See 38 C.F.R. § 4.71a, DC 5260. Each subsequent VA examination has indicated the Veteran’s left knee flexion increased over time and was most recently measured to be 135 degrees. Normal knee flexion is 140 degrees. The Board has considered the Veteran’s reports of bilateral knee “popping,” “grinding,” instability and continued use of custom orthotic knee braces during the rating period. Given these symptoms, the Board will award a separate 20 percent rating under DC 5257 for moderate recurrent instability. See 38 C.F.R. § 4.71a, DC 5257; see also 38 C.F.R. § 4.6 (“Terms such as “mild,” “moderate” and “moderately severe” are not defined in the regulatory criteria, and the Board must make considerations as to their applicability to symptoms reported in the record in a manner that is “equitable and just.”). A rating of 20 percent but not higher is warranted under DC 5257. While the Veteran has left knee instability, his symptoms are not “severe.” VA treatment records reflect that the Veteran has consistently denied falling, nearly falling, or fear of falling. At his VA examinations, his right knee demonstrated normal muscle strength, reflexes, and joint stability during clinical testing. Additionally, a June 2020 VA treatment record indicates the Veteran secured employment which he reported entailed “a lot of manual labor.” Given this evidence, a 20 percent rating for moderate instability is warranted. Additionally, the Board finds the Veteran’s symptoms of bilateral knee swelling, “popping,” and “grinding” warrant approximation of a separate rating under DC 5258. See 38 C.F.R. § 4.71a, DC 5258. DC 5258 provides a single, maximum 20 percent rating for “dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion to the joint.” While the medical evidence shows the Veteran has not had a meniscal injury, he has consistently reported swelling and locking episodes, although these symptoms were not confirmed by clinical testing during his VA examinations. The Board will resolve the benefit of the doubt in the Veteran's favor and award a separate 20 percent rating under DC 5258. This is the highest possible rating under this diagnostic code. A separate rating for limitation of extension under DC 5261 is not warranted because the Veteran does not have left knee extension limited to 5 degrees. Separate ratings under DCs 5256, 5259, 5262, or 5263 are not warranted because the Veteran’s left knee did not manifest with ankylosis, symptomatic removal of semilunar cartilage, malunion of the tibia or fibula, or acquired traumatic genu recurvatum. For these reasons, a rating of more than 10 percent under DC 5260 for limited flexion of the left knee is not warranted at any point during the appellate period. However, the Board will grant separate 20 percent ratings under DCs 5257 and 5258. REASONS FOR REMAND 1. The issue of service connection for a lower back disorder, to include as secondary to service-connected bilateral knee disorders, is remanded. 2. The issue service connection for bilateral pes planus, to include as secondary to a service-connected bilateral knee disorder, is remanded. 3. The issue of service connection for an acquired psychiatric disorder, to include PTSD and/or an unspecified depressive disorder, is remanded. The matters are REMANDED for the following actions: 1. BACKGROUND FOR THE RO ADJUDICATOR: To comply with the Court’s December 2019 remand and the Board’s June 2020 remand directives, and to fully adjudicate the remaining issues, the Board requires additional factual and medical development as below. 2. REMAND DIRECTIVES: Contact the Veteran and determine if he has any further medical treatment records or other evidence not currently in the record as to the disorders at issue. Assist him in obtaining these records. Obtain any further VA medical records not currently in the record. Contact the National Personnel Records Center (NPRC), Records Management Center (RMC), or other appropriate entity to secure any outstanding service treatment records (STRs) and/or personnel records that have not already been associated with the claims file. In particular, attempt to locate: • The Veteran’s separation medical examination report. Although the Veteran reported he is unsure if he received a separation examination, the June 1997 Rating Decision noted that the Veteran’s “discharge exam is of record.” • Medical records or other documents not already of record that relate to the 1995-6 Medical Retention Board proceedings, including the report of the March 1996 physical examination done in connection with the proceedings. See Veteran’s statement that the March 1996 examination report was missing from his file after his file was returned from the Landstuhl Regional Army Medical Center (LRAMC) after the Medical Board proceedings were completed. (“STR – Medical,” received January 22, 2015, at page 77 of 121). • Any medical or other records related to the Veteran’s claimed hallucinations and mental health hospitalization in service while stationed in Landstuhl, Germany. See “C&P Exam,” received August 29, 2016, at page 4 of 11. • Any personnel or other records related to the Veteran’s claimed Article 15 for assaulting a non-commissioned officer. See “C&P Exam,” received August 29, 2016, at page 4 of 11. If these records are not available, or further attempts to secure them would be futile, obtain a statement from the NPRC or other relevant facility to this effect. IF THERE ARE ANY OUTSTANDING RECORDS THAT CANNOT BE LOCATED, MAKE A FORMAL FINDING AS TO THEIR UNAVAILABILITY. Inform the Veteran of the status of these records and advise him that alternative forms of evidence can be developed to substantiate the claim. All development should be recorded in the claims file. If further development is deemed futile, advise the Veteran and document in the record. AFTER CONDUCTING THE ABOVE DEVELOPMENT, obtain addendum medical opinions for the disorders listed below: a. LOWER BACK DISORDER: Obtain an addendum opinion from an appropriately qualified PHYSICIAN to clarify the nature and etiology of the Veteran’s lower back disorder. An explanation should be given for all opinions and conclusions rendered. Based upon a review of the relevant evidence of record, history provided by the Veteran, and sound medical principles, the examiner should provide the following opinions: i. Whether the Veteran’s current lower back disorder was caused by or is in any way related to an injury, disease or illness that occurred during active service? ii. Whether the Veteran’s current lower back disorder was caused or aggravated (i.e., worsened beyond its natural progression) by his service-connected bilateral knee disorder? iii. Whether the Veteran’s current lower back disorder was caused or aggravated by his bilateral pes planus, if found to be service connected? IN ADDITION TO ANY RECORDS GENERATED AS A RESULT OF THIS REMAND, the examiner is requested to review the following: *The examiner is requested to review the medical article, “Limping and Back Pain,” submitted by the Veteran in May 2018. See “CAVC Decision,” received December 11, 2019, at pages 14-21 of 26. The examiner is further requested to explain whether and how the conclusions drawn in the article relate to the FACTS OF THIS CASE. *The examiner is requested to review a July 1996 STR showing treatment for an acute lower and thoracic back strain and a November 1994 STR showing treatment for a lower back injury after lifting weights. See “STR – Medical,” received January 22, 2015, at pages 63, 75 of 112; “STR – Medical,” received January 22, 2015 at page 20 of 30. *The examiner is requested to review the Veteran’s lay statements that his lower back pain first began in service and continued to the present. The examiner is further advised that the lack of documented treatment for a medical condition during and after service cannot be the sole basis for a negative opinion. Consider the Veteran’s description of the development of his disorder and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the Veteran’s account of the reported injury and symptoms in service and thereafter, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? *If the examiner finds the Veteran’s lower back disorder is not related to service or his bilateral knee disorder, the examiner is requested to provide an alternate etiology. A thorough explanation must be provided for the opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, she should expressly indicate the same and provide supporting rationale as to why the opinions cannot be made without resorting to speculation. The examiner should schedule a new examination only if necessary to provide an adequate opinion. THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THE EXAMINATION/OPINION SUFFICIENT. b. BILATERAL PES PLANUS: Obtain an addendum opinion from an appropriately qualified PHYSICIAN to clarify the nature and etiology of the Veteran’s bilateral pes planus. An explanation should be given for all opinions and conclusions rendered. Based upon a review of the relevant evidence of record, history provided by the Veteran, and sound medical principles, the examiner should provide the following opinions: i. Whether the Veteran’s current pes planus was caused or aggravated (i.e., worsened beyond its natural progression) by his service-connected bilateral knee disorder? IN ADDITION TO ANY RECORDS GENERATED AS A RESULT OF THIS REMAND, the examiner is requested to review the following: *The examiner is requested to review the Veteran’s lay statements that his bilateral pes planus worsened during service and continued to the present. If the examiner rejects the Veteran’s reports, the examiner must explain the medical bases for that conclusion. Consider the Veteran’s description of the development of his disorder and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the Veteran’s account of the reported injury and symptoms in service and thereafter, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? *The examiner is further advised that the lack of documented treatment for a medical condition during and after service cannot be the sole basis for a negative opinion. *The examiner is requested to explain the medical bases for the conclusion made by the October 2019 VA examiner that the apparent lack of an abnormal gait supported the negative opinion. *A March 1995 STR noting the Veteran’s bilateral pes planus which was worse on the right foot than the left, his gait was normal, and that he was referred to “orthopedics for arch support evaluation.” See “STR – Medical,” received January 22, 2015, at page 85 of 121. The examiner should schedule a new examination only if necessary to provide an adequate opinion. THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THE EXAMINATION/OPINION SUFFICIENT. c. ACQUIRED PSYCHIATRIC DISORDER, INCLDUING PTSD AND UNSPECIFIED DEPRESSIVE DISORDER: Obtain an addendum opinion from the October 2019 examiner, or another appropriately qualified PSYCHOLOGIST, PSYCHIATRIST OR OTHER CLINICIAN to clarify the nature and etiology of the Veteran’s psychiatric disorders. An explanation should be given for all opinions and conclusions rendered. Based upon a review of the relevant evidence of record, history provided by the Veteran, and sound medical principles, the examiner should provide the following opinions: i. Whether the Veteran’s current psychiatric disorders were caused by or are in any way related to an injury, disease or illness that occurred during active service? ii. Whether the Veteran’s current psychiatric disorders were caused or aggravated (i.e., worsened beyond their natural progression) by his service-connected bilateral knee disorder? IN ADDITION TO ANY RECORDS GENERATED AS A RESULT OF THIS REMAND, the examiner is requested to review the following: *The examiner is requested to review the Veteran’s lay statements at the October 2019 VA examination that psychiatric symptoms began in service and continued thereafter, including anger, irritability, alcohol use, and hallucinations. See “C&P Exam,” received October 15, 2019, at page 3. If the examiner rejects the Veteran’s reports, the examiner must explain the medical bases for that conclusion. Consider the Veteran’s description of the development of his disorder and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the Veteran’s account of the reported injury and symptoms in service and thereafter, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? *A January 2011 VA psychiatric evaluation where the Veteran reported mental distress from witnessing death and mutilated bodies during service, and developing violent behavior in the military and was disciplined for “fixing to beat up [a] NCO.” See “Medical Treatment Record – Government Facility,” received September 13, 2014. *A February 2016 VA psychiatric record where Veteran reported thinking about the military “a lot,” and wishing he could return to the military. See “CAPRI,” records received August 5, 2016, at page 38 of 40. *June 2016 VA psychiatric records indicating the Veteran was hospitalized for a violent outburst in which he “went all military” on his supervisor at work. See Id. at page 1 of 40. *The examiner is requested to review the October 2019 VA opinion and explain why, from a medical standpoint, it was unclear that the Veteran’s unspecified depressive disorder did not constitute 50 percent of the condition. The examiner is further requested to clarify which “multiple” other sources of depression are referred to in the opinion. A thorough explanation must be provided for the opinion rendered. If the examiner cannot provide the requested opinion without resorting to speculation, s/he should expressly indicate this and provide supporting rationale as to why the opinion cannot be made without resorting to speculation. It must be made clear that such a finding is based on a lack of knowledge among the medical community at large and not insufficient knowledge of the specific examiner. THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED, AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THE EXAMINATION/OPINION SUFFICIENT. If the benefits sought are not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded a reasonable opportunity to respond to the SSOC before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.§§ 5109B, 7112. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Hiaasen 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.