Citation Nr: 21011790 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 09-40 940 DATE: March 2, 2021 REMANDED Entitlement to a rating in excess of 10 percent for left knee osteoarthritis is remanded. Entitlement to a rating in excess of 10 percent for right knee osteoarthritis is remanded. Entitlement to a rating in excess of 10 percent for left knee instability is remanded. Entitlement to a rating in excess of 10 percent for right knee instability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1972 to August 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which, in relevant part, continued 10 percent ratings for left and right knee osteoarthritis and granted separate 10 percent ratings for right and left knee subluxation, effective January 17, 2008. In January 2015, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge. The appeal was remanded for further development in March 2015 and June 2019. Unfortunately, another remand is required. Pursuant to the Board’s June 2019 remand directives, the Veteran was afforded a VA knee examination in August 2020. While the examiner noted full range of motion bilaterally and pain with active motion during flexion, he did not report where the pain begins in terms of degrees. Additionally, the Board specifically asked the examiner to “[d]etermine whether there is separate neurologic bilateral knee disability associated with the Veteran’s bilateral knee arthritis. The examiner should comment on the Veteran’s report of pain radiating from his knees through his upper thighs and complete any necessary testing determine the nature and severity of such impairment.” However, the examiner failed to address any separate neurologic bilateral knee disability as specifically requested by the Board, warranting remand for compliance with the Board’s prior directives. Stegall v. West, 11 Vet. App. 268 (1998). Additionally, new criteria for rating knee disabilities recently became effective and the Veteran could be entitled to a higher prospective rating based on these new criteria. On remand, he should be afforded another examination and the examiner should specifically address the new rating criteria. As a discussion on the Veteran’s bilateral knee instability will be addressed in the new VA examination, adjudication of these issues is deferred pending the findings in the VA examination report. As the outcome of his increased bilateral knee claims could affect the overall combined rating and allow him to meet the schedular criteria for a TDIU from the beginning of the appeal period, action on the TDIU claim is deferred pending the outcome of the bilateral knee claims. Lastly, any outstanding treatment records should be secured, specifically the complete private opinion from Dr. H. S. submitted by the Veteran in December 2020. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding private treatment records, to include the complete private opinion from Dr. H. S. submitted by the Veteran in December 2020 (please note pages 1-3 of the opinion are missing) and any EMG studies of his knees. 3. Then schedule the Veteran for a VA knee and neurological examination to determine the current nature and severity of his bilateral knee disability, including any associated neurological disability. The claims file should be made available to and reviewed by the examiner and all findings reported in detail. The examiner is requested to address the following: (a) Conduct any testing necessary to identify any neurological disabilities affecting the lower extremities and identify the same. The examiner should comment on the Veteran’s report of pain radiating from his knees through his upper thighs and complete any necessary testing determine the nature and severity of such impairment. (b) For each neurological disability diagnosed pursuant to part (a), please opine as to whether it is at least as likely as not (50 percent or greater probability) such disability is (1) proximately due to or (2) aggravated (worsened) by his bilateral knee disabilities. Please address (b)(1) and (b)(2) separately for each identified neurological disability. (c) Considering the Veteran’s reported history, please also provide an opinion describing functional impairment of the Veteran’s bilateral knees, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. If unable to provide such an opinion without resorting to speculation, please provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Asante, Ruby 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.