Citation Nr: 21011638 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 14-43 936 DATE: March 2, 2021 ORDER From July 15, 2011 to September 4, 2020, entitlement to an initial rating in excess of 10 percent for left knee limitation of flexion, due to status post plica resection with patellar fracture and chondromalacia patella, is DENIED. From July 15, 2011 to September 4, 2020, entitlement to a separate initial non-compensable rating for left knee limitation of extension is GRANTED. From July 15, 2011 to September 4, 2020, entitlement to a separate initial 20 percent rating for a left knee meniscal tear, which resulted in frequent episodes of locking, joint pain, and effusion, is GRANTED. From July 15, 2011 to July 30, 2020, entitlement to an initial 20 percent rating for 3 painful left knee scars is GRANTED. On and after July 30, 2020, entitlement to a rating in excess of 30 percent for 5 painful left knee scars is DENIED. REMANDED On and after September 4, 2020, entitlement to a rating in excess of 30 percent for a service-connected left knee disability is REMANDED. Entitlement to a total disability rating due to individual unemployability (TDIU) is REMANDED. FINDINGS OF FACT 1. From July 15, 2011, the Veteran did not demonstrate left knee flexion limited to 30 degrees or more. 2. From July 15, 2011, the Veteran demonstrated 5 degrees of lost range of motion (ROM) in the left knee during extension. The Veteran did not demonstrate a ROM limit of 10 degrees or more during extension. 3. From July 15, 2011, the Veteran demonstrated a left knee meniscal tear that resulted in frequent episodes of locking, joint pain, and effusion. 4. From July 15, 2011 to July 30, 2020, the Veteran demonstrated three painful left knee scars. The 3 left knee scars were not unstable. 5. On and after July 30, 2020, the Veteran demonstrated five painful left knee scars. The 5 left knee scars were not unstable.   CONCLUSIONS OF LAW 1. From July 15, 2011, the criteria for an initial rating in excess of 10 percent for a limit in left knee flexion have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.25, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5260 (2020). 2. From July 15, 2011, the criteria for a separate initial non-compensable rating for a limit of left knee extension have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.25, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5261 (2020). 3. From July 15, 2011, the criteria for a separate initial rating of 20 percent for a left knee meniscal tear, which resulted in frequent episodes of locking, joint pain, and effusion, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.25, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5258 (2020). 4. From July 15, 2011 to July 30, 2020, the criteria for entitlement to a 20 percent rating for 3 painful left knee surgical scars have been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.130, Diagnostic Codes (DCs) 7802, 7804, 7805 and 7806 (2020). 5. On and after July 30, 2020, the criteria for entitlement to a rating in excess of 30 percent for 5 painful left knee surgical scars have not been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.130, Diagnostic Codes (DCs) 7802, 7804, 7805 and 7806 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from July 2009 to July 2011. The Board has thoroughly reviewed all the evidence in the Veteran’s claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Increased Rating, Generally Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). The Board must also assess the competence and credibility of lay statements and testimony. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In increased rating claims, a Veteran’s lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev’d on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). The Veteran is uniquely suited to describe the severity, frequency, and the duration of the symptoms that accompany his service-connected left knee disabilities. See Falzone v. Brown, 8 Vet. App. 398 (1995); Heuer v. Brown, 7 Vet. App. 379 (1995). As noted above, the Veteran’s entire history is reviewed when assigning a disability evaluation. 38 C.F.R. § 4.1. However, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board must consider whether there have been times when his disabilities on appeal have been more severe than at others, and rate them accordingly. 1. From July 15, 2011 to September 4, 2020, entitlement to an initial rating in excess of 10 percent for left knee limitation of flexion, due to status post plica resection with patellar fracture and chondromalacia patella, is denied. 2. From July 15, 2011 to September 4, 2020, entitlement to an initial non-compensable rating for left knee limitation of extension is granted. 3. From July 15, 2011 to September 4, 2020, entitlement to an initial 20 percent rating for a left knee meniscal tear, which resulted in frequent episodes of locking, joint pain, and effusion, is granted. In August 2012, the AOJ granted service connection for status post PLICA resection, with patellar fracture and chondromalacia patella. The AOJ assigned a 10 percent rating based on painful motion of the left knee. In July 2013, the Veteran submitted a notice of disagreement (NOD). Therein, the Veteran posited that, “I disagree with the 10% rating because the injury is increasing in damage. Was supposed to have another surgery while in service, but never received the surgery before the discharge.” Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In addition, when assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must, in addition to applying scheduler criteria, also consider evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-207 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 should only be considered in conjunction with the Diagnostic Codes (DCs) predicated on limitation of motion. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, including knee joints, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. The Veteran has been in receipt of a 10 percent evaluation under 38 C.F.R. § 4.59 since July 15, 2011. In addition to the compensation available for painful motion, this claim requires consideration of the other possibly applicable Diagnostic Codes. Under DC 5260, degenerative joint disease shall be rated based on limitation of motion of the right knee, as degenerative arthritis under 38 C.F.R. § 4.71a, DC 5003. 38 C.F.R. § 4.71a, DC 5260. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings is rated based on limitation of motion under appropriate diagnostic codes for the specific joint or joints involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. If there is limitation of motion but it is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion—to be combined, not added. If there is no limitation of motion, a 10 percent rating applies if there is X-ray evidence that two or more major joints or two or more minor joint groups are involved. A 20 percent rating applies if there is X-ray evidence of the involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. 38 U.S.C. § 4 .71a, DC 5003. For purposes of rating disability from arthritis, the major joints are the shoulder, elbow, wrist, hip, knee, and ankle. 38 C.F.R. § 4.45. Although “incapacitating exacerbations” is not defined under DC 5003, the Board analogizes it to “incapacitating episodes,” which is defined in the IVDS Formula at Note (1) as “a period of acute signs and symptoms . . . that requires bed rest prescribed by a physician and treatment by a physician.” 38 C.F.R. § 4.71a, DC 5003, IVDS Formula at Note (1). Under DC 5257, knee impairment with recurrent subluxation or lateral instability is rated 10 percent when slight, 20 percent when moderate, and 30 percent when severe. 38 C.F.R. § 4.71 (a), DC 5257. The Board observes that the DC was recently revised effective February 7, 2021. As these changes are not applicable prior to this date, the Board will proceed with adjudication of the ratings prior to September 2020 under the old version of DC 5257. To the extent that the changes in the diagnostic criteria are applicable after February 7, 2021, the Board has determined that further evidentiary development is warranted for the rating from September 4, 2020. On remand, the AOJ will have the opportunity to consider to what extent the revised criteria may be applicable to the claim. DC 5258 assigns a 20 percent evaluation for dislocated semilunar cartilage (meniscus) with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71 (a), DC 5258. Additionally, DC 5259 assigns a 10 percent rating for removal of semilunar cartilage, symptomatic. 38 C.F.R. § 4.71 (a), DC 5259. Under DC 5260, which provides disability evaluations based on limitation of flexion, a noncompensable evaluation is warranted when knee flexion is limited to 60 degrees; a 10 percent evaluation is warranted when flexion is limited to 45 degrees; a 20 percent evaluation is warranted when flexion is limited to 30 degrees; and a 30 percent evaluation is warranted when flexion is limited to 15 degrees. 38 C.F.R. § 4.71 (a), DC 5260. Under DC 5261, a 10 percent evaluation is warranted when extension is limited to 10 degrees, a 20 percent evaluation is warranted when extension is limited to 15 degrees, a 30 percent evaluation is warranted when extension is limited to 20 degrees, a 40 percent evaluation is warranted when extension is limited to 30 degrees, and a 50 percent evaluation is warranted when extension is limited to 45 degrees. 38 C.F.R. § 4.71 (a), DC 5261. Normal range of motion of the knee is 0 to 140 degrees of extension to flexion. 38 C.F.R. § 4.71 (a), Plate II. VAOPGCPREC 23-97 provides that a Veteran may be assigned separate ratings for arthritis with limitation of motion under DC 5260 or 5261, and for instability or subluxation under DC 5257. See VAOPGCPREC 23-97 (July 1, 1997). In VAOPGCPREC 9-98, VA General Counsel held that if a veteran has a disability rating under DC 5257 for instability or subluxation of the knee, and there is also X-ray evidence of arthritis, a separate rating for arthritis could also be assigned based on painful motion under 38 C.F.R. § 4.59. The VA General Counsel has issued an opinion holding that “separate ratings may be assigned under DC 5260 and DC 5261, where a Veteran has both a limitation of flexion and limitation of extension of the same leg; limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg.” See VAOPGCPREC 9-2004 (September 17, 2004). In November 2011, an Emergency Department Note was generated at the Fayetteville VA Medical Center. At that time, the Veteran relayed chronic left knee pain. The provider noted no swelling or tenderness on palpation. The Veteran demonstrated pain with range of motion. In April 2012, the Veteran underwent a VA examination that addressed the severity of the service connected left knee disability. The Veteran reported a long history of left knee pain, and he reported flare-ups of left knee pain. The VA examiner reported the following left knee range of motion (ROM) in degrees: 130 flexion and no limit on extension. The VA examiner did not note a change in ROM values after repetitive testing. The VA examiner noted normal stability tests values for the Veteran’s left knee, and there was no history of recurrent patellar subluxation / dislocation noted. The VA examiner noted a left knee meniscal tear that resulted in frequent episodes of locking, joint pain, and effusion. The Veteran reported constant use of a brace and crutch for the service-connected left knee disability. In June 2017, a left knee MRI was conducted at the Cumberland County VA Clinic. At that time, the Veteran complained of left knee pain. The VA provider reported that the Veteran’s left knee ligaments were grossly intact. The VA provider noted no left knee joint effusion or popliteal cyst. The VA provider’s impression was benign patellar lesion, osteoid osteoma is favored. In July 2019, the Veteran underwent a VA examination that addressed the severity of knee and lower leg conditions. At that time, the Veteran identified left knee pain. The VA examiner reported a diagnosis for left knee status post PLICA resection, with patellar fracture and chondromalacia patella. The Veteran demonstrated the following initial left knee range of motion (ROM) in degrees: 95 flexion and 5 extension. The Veteran demonstrated pain during left knee flexion. The Veteran did not demonstrate any additional ROM loss after repetitive use. The VA examiner did not note that pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time. The VA examiner did not note that pain, weakness, fatigability or incoordination significantly limited functional ability during left knee flare-ups; the Veteran denied left knee flare-ups. The Veteran demonstrated 5/5 strength during flexion and extension. Left knee ankylosis was not demonstrated. The VA examiner did not note a history of left knee recurrent subluxation, lateral instability or recurrent effusion. The Veteran demonstrated normal left knee stability during the examination. The Veteran reported regular use of a knee brace and cane for mobilization. The VA examiner noted objective left knee pain with passive ROM testing and during non-weight bearing movement. During the claim period, the Veteran did not demonstrate left knee recurrent subluxation or lateral instability, flexion limited to 30 degrees, or extension limited 10 degrees. Consequently, the Board finds that additional and/or higher ratings are not warranted under 38 C.F.R. § 4.71 (a), DCs 5257, 5260, or 5261. During the claim period, the Veteran demonstrated 5 degrees of lost ROM in the left knee during extension. Consequently, the Board finds that a separate non-compensable rating is warranted under 38 C.F.R. § 4.71 (a), DC 5261. Early in the claim period, a VA examiner noted a left knee meniscal tear that resulted in frequent episodes of locking, joint pain, and effusion. Consequently, the Board finds that a separate initial 20 percent rating is warranted under 38 C.F.R. § 4.71 (a), DC 5258. Ultimately, the preponderance of the evidence favors the Veteran’s entitlement to separate ratings for the service-connected left knee disability. Accordingly, this increased rating claim must be granted. The Board notes that the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 4. From July 15, 2011 to July 30, 2020, entitlement to an initial 20 percent rating for 3 painful left knee scars is granted. In August 2012, the AOJ granted service connection for left knee scars. The AOJ assigned a non-compensable rating because the linear scars were not identified as painful or unstable. In July 2013, the Veteran submitted a notice of disagreement (NOD). Therein, the Veteran posited that, “I disagree with the 0% rating because the scars have created inflamed scar tissue that’s very painful and can only be removed with surgery.” The Veteran’s left knee scars are rated under Diagnostic Code 7805. 38 C.F.R. § 4.118. In general, the rating criteria for scars are provided under DCs 7800, 7801, 7802 and 7804. In addition, Diagnostic Code 7805 provides that any disabling effect(s) not considered in a rating provided under DCs 7800-7804 should be evaluated under an appropriate Diagnostic Code. Id. Under DC 7804, the presence of one or two scars that are unstable or painful warrants a 10 percent disability rating. Three or four scars that are unstable or painful warrant a 20 percent rating. The presence of five or more scars that are unstable or painful warrant a 30 percent rating. Note (1) explains that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Under Note (2), if one or more scars are both unstable and painful, 10 percent is to be added to the rating that is based on the total number of unstable or painful scars. Id. In April 2012, the Veteran underwent a VA examination that addressed the severity of the service-connected left knee disability. The VA examiner did not note painful and/or unstable left knee scars. The VA examiner noted four left knee surgical scars. Again, in July 2013, the Veteran posited that, “I disagree with the 0% rating because the scars have created inflamed scar tissue that’s very painful and can only be removed with surgery.” During the appellate period, the Board notes that the Veteran has posited that his left knee scars were painful. The Veteran is competent to report this pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In July 2019, the Veteran underwent a VA examination that addressed the severity of the service-connected left knee scars. The VA examiner noted 3 linear left knee scars from a 2010 meniscectomy. The VA examiner noted that the scars were not painful or unstable. All three reported scars had the following measurements (in cm): 1 x 0.2. During the appellate period, July 15, 2011 to July 30, 2020, the Veteran competently reported painful service-connected left knee scars. The record reflects that there were three left knee scars during the appellate period. The record reflects that the 3 left knee scars were not unstable. The Veteran’s competent and credible reports of 3 painful scars warrant a 20 percent rating under 38 C.F.R. § 4.118, DC 4804. Ultimately, the preponderance of the evidence favors the Veteran’s claim for a 20 percent rating for the three service-connected left knee scars between July 15, 2011 to July 30, 2020. Accordingly, this increased rating claim must be granted. The Board notes that the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 5. On and after July 30, 2020, entitlement to a rating in excess of 30 percent for 5 painful left knee scars is denied. In August 2020, the Veteran’s treatment records from Cumberland County VA Clinic were associated with the claims file. In January 2020, the records reflect that the Veteran was scheduled for another left knee surgery. Again, under DC 7804, the presence of three or four scars that are unstable or painful warrant a 20 percent rating. The presence of five or more scars that are unstable or painful warrant a 30 percent rating. 38 C.F.R. § 4.118. In July 2020, the Veteran underwent a video VA examination that addressed the severity of the service-connected left knee scars. The VA examiner noted 5 linear left knee scars, three from the 2010 surgery and two from the 2020 surgery. The VA examiner noted that the 5 left knee scars were painful, but none were unstable. The VA examiner noted that all 5 left knee scars measured 1 cm x 0.5 cm. The VA examiner reported that scars covered approximately 2.5 x 2.5 total surface area (in cm). During the appellate period, the Veteran has posited that his left knee scars were painful. The Veteran is competent to report this pain. See Jandreau, 492 F.3d at 1376-77. In October 2020, the agency of AOJ issued a rating decision. At that time, the AOJ increased the Veteran’s rating for left knee scars to 30 percent, effective July 30, 2020. The AOJ based the increased rating on 5 painful left knee scars that were demonstrated by the Veteran during the July 30, 2020 VA examination. During the appellate period, on and after July 30, 2020, the Veteran competently reported 5 painful service-connected left knee scars. The record reflects that there were five left knee scars during the appellate period. The record does not reflect that the 5 left scars were unstable. The Veteran’s competent and credible reports of 5 painful scars warrant a 30 percent rating under 38 C.F.R. § 4.118, DC 4804. Ultimately, the Board finds that the preponderance of the evidence stands counter to the Veteran’s claim for a rating in excess of 30 percent for the service-connected left knee scars on and after July 30, 2020. Since the preponderance of the evidence is against this increased rating claim, the provisions of 38 U.S.C. § 5107(b), regarding reasonable doubt, are not applicable. The Veteran’s claim for a rating in excess of 30 percent for the service-connected left knee scars on and after July 30, 2020 must be denied, because the preponderance of the evidence weighs against his claim. The Board notes that the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy, 27 Vet. App. at 495; Doucette, 38 Vet. App. at 369-70 (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Upon review of the record, the Board concludes that further evidentiary development is necessary. Although the Board sincerely regrets this delay and is appreciative of the Veteran’s service to his country, a remand is necessary to ensure VA provides the Veteran with appropriate assistance in developing his claim prior to final adjudication. 7. On and after September 4, 2020, entitlement to a rating in excess of 30 percent for a service-connected left knee disability is remanded. 8. Entitlement to a total disability rating due individual unemployability (TDIU) is remanded. On September 4, 2020, the Veteran underwent a VA examination that addressed the severity of knee and lower leg conditions. The VA examiner noted a diagnosis for left knee Plica syndrome. The VA examiner noted that the Veteran ambulated to the examination room with crutches. The Veteran reported frequent falls due to the left knee giving out. The Veteran reported continuous left knee pain that was increased by climbing stairs, rising, walking, and squatting. The Veteran reported left knee flare-ups were accompanied by stiffness and sharp pains; the Veteran reported that the sharp pains caused him to fall and the left knee to buckle. The Veteran reported daily swelling of the left knee. The VA examiner reported the following initial ROM (in degrees): 140 flexion and 0 extension. The Veteran exhibited pain during flexion. The Veteran demonstrated 5/10 pain during left knee palpation. The Veteran did not demonstrate left knee ROM loss after repetitive movements. The VA examiner noted that pain, weakness, and lack of endurance significantly limited functional ability with repeated use over a period of time. The VA examiner described the limit as 10 degrees of left knee flexion. The VA examiner noted that pain, weakness, and lack of endurance significantly limited functional ability during a left knee flare-up. The VA examiner described the limit as 10 degrees of left knee flexion. The Veteran demonstrated 4/5 left knee muscle strength during flexion. The VA examiner did not note left knee ankylosis. The VA examiner did not note a history of left knee recurrent subluxation, lateral instability or recurrent effusion. The Veteran demonstrated normal left knee stability during the examination. The VA examiner noted that the Veteran did not have a history of recurrent patellar dislocation, medial tibial stress syndrome, stress fractures, chronic exertional compartment syndrome or any other tibial or fibular impairment. The Veteran reported regular use of a brace, and occasional use of crutches or cane, for normal locomotion. The VA examiner noted the following functional impact: “(l)imitation of flexion, due to status post PLICA resection, with patellar fracture and chondromalacia patella of the left knee climbing stairs, rising from sitting to standing, walking over time and squatting cause increase pain to his left knee. Reports frequent falls due to left knee giving out.” The VA examiner noted objective left knee pain with passive ROM testing, but the Veteran did not demonstrate pain during non-weight bearing movement. In October 2020, the AOJ issued a rating decision. At that time, the AOJ increased the Veteran’s left knee disability rating to 30 percent, effective September 4, 2020. The AOJ based the increased rating on the 10 degrees of flexion demonstrated by the Veteran during the September 4, 2020 VA examination. The Board notes that September 2020 VA examiner reported normal left knee stability during the examination testing. However, the Veteran competently reported frequent falls, because the left knee gave out. Moreover, the VA examiner also reported that the that the Veteran regularly utilizes a left knee brace for stability and that he arrived at the examination using crutches. As the September 2020 VA examiner’s opinion was based on the fact that the fact that the Veteran did not demonstrate lateral instability during testing, the Board finds that it was based on an inaccurate factual premise, which renders the opinion inadequate. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical opinions based on incomplete or inaccurate factual premise are not probative). Accordingly, on remand, the AOJ must secure a VA examination report that adequately addresses the presence, if any, of any lateral instability resultant from the Veteran’s service-connected left knee disability. The issue of entitlement to TDIU is inextricably intertwined with the issue of entitlement to higher evaluation for the Veteran’s service-connected knee disability. Accordingly, a decision on the TDIU issue is deferred pending adjudication of the claim for a higher rating for the Veteran’s left knee disability. Consequently, the matter is REMANDED to the AOJ for the following action: 1. Schedule a VA knee examination to ascertain the current severity of the Veteran’s service-connected left knee disability. The VBMS and Virtual VA electronic claims files must be made available to, and be reviewed by, the examiner. All indicated testing should be accomplished and all symptomatology associated with left knee disability should be identified. In addition to all findings identified on the appropriate examination form, the examiner should determine the effective range of motion in the Veteran’s left knee and present the results of range of motion tests in a written report which complies with 38 C.F.R. § 4.59 by recording separate sets of the range of motion test results for both active and passive motion, and in weight bearing and non-weight-bearing, and the range of motion in the opposite, undamaged joint. The examiner’s report should describe objective evidence of painful motion, if any, during each test. (It is not sufficient merely to indicate whether or not pain was present during one of the required range of motion tests.) If any of these findings are not possible, please provide an explanation. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran’s description of reduced range of motion during flares or repetitive use. Whether or not the post-remand examination takes place during a flare-up, the examiner should ask the Veteran about whether the extent of functional impairment during flare-ups, and the frequency and duration of flare-ups, has changed since September 4, 2020. The VA examiner is informed / reminded that, effective February 7, 2021, the VA regulations which govern knee subluxation and instability undergo a change. The VA examiner must supply a report that aligns with the changes in the VA regulation for 38 C.F.R. § 4.71 (a), Diagnostic Code 5257. The AOJ must ensure that the examination report requested above is in compliance with the directives of this remand. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures at once. 2. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the claim for an increased left knee disability rating. If the benefit sought is not granted, the AOJ must then issue a Supplemental Statement of the Case (SSOC) and allow the Veteran an opportunity to respond. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board RLBJ, 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.