Citation Nr: 21011902 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 10-05 448 DATE: March 3, 2021 REMANDED Entitlement to an increased disability rating in excess of 10 percent from February 10, 2009, and 20 percent from March 27, 2018, for left patella chondromalacia with a torn medial meniscus (left knee disability). Entitlement to an increased disability rating in excess of 10 percent from February 1 2009, and 20 percent from March 27, 2018, for right knee patellofemoral syndrome, post partial medial meniscectomy for complex tear of the posterior horn of the medial meniscus (right knee disability). REASONS FOR REMAND The Veteran served on active duty from March 1978 to September 1995. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran testified before the undersigned VLJ. A transcript of the hearing is associated with the evidentiary record. In June 2011, December 2014, and July 2016, the Board remanded the claims for further development. A July 2019 Board decision denied the claim for an increased evaluation prior to March 27, 2018 and dismissed the claim for an increased evaluation thereafter. The Veteran appealed the decision to the U.S. Court of Appeals For Veterans Claims (Court). A July 2020 Court Order granted a Joint Motion for Remand (JMR) to vacate the Board's July 2019 decision and remand the claim to the Board for readjudication consistent with the JMR. The JMR identified that the Board’s decision to deny an increase in excess of 10 percent prior to March 27, 2018 was based upon duty to assist errors. The JMR found the Board primarily relied upon an inadequate August 2015 VA examination, where passive range of motion and range of motion in non-weight-bearing conditions as required by Correia was not provided. See Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). Further, the examiner failed to provide rationale when an opinion on flare-ups could not be rendered without resorting to speculation. See Sharp v. Shulkin, 29 Vet. App., 34- 36 (2017). Thus, the JMR directed the Board to obtain a new VA examination. The new examination must address the functional impact of pain, weakness, fatigability or incoordination on Veteran’s left and right knee disabilities with repeated use over a period of time and during flare-ups. Current and retrospective results of range of motion testing for the left and right knee joints for pain on both active and passive motion and in weight-bearing and non-weight-bearing mode must be provided in the new examination. Moreover, the JMR stipulated that if, upon remand, the examiner is unable to provide an opinion without speculation, adequate rationale must be provided. The parties to the JMR also agreed that the Board did not adequately consider whether a separate rating was warranted for residuals of the Veteran’s left and right knee meniscectomies under Diagnostic Code 5259. The Board erred in finding that a separate rating under Diagnostic Code 5259 would constitute impermissible pyramiding, and as such the JMR determined the issue must be addressed upon remand without reference to pyramiding. Lastly, the JMR found the Board’s statement of reasons and bases in the July 2019 decision inadequate for dismissal of the Veteran’s claims for right and left knee disability ratings in excess 20 percent from March 27, 2018. The Board dismissed the claims based upon a verbal statement by the Veteran at the October 2018 board hearing, without application of the DeLisio standard for verbal claim withdrawal. DeLisio v. Shinseki, 25 Vet. App. 45 (2011). A claim is effectively withdrawn at a hearing when the statement made by the Veteran is: (1) explicit; (2) unambiguous; and (3) done with a full understanding of the consequences of such action on the part of the veteran. Id at 57. On remand, the Board was instructed to address the Veteran’s hearing testimony consistent with DeLisio. Although the October 2018 hearing transcript indicated the Veteran was satisfied with the RO’s increased evaluation of 20 percent, effective March 27, 2018, the record did not unambiguously illustrate the intent to withdraw the increased rating claim from that date forward, with a full understanding of the consequences of such action. Further, pursuant to the Court’s order the Veteran submitted a July 2020 statement outlining the legal arguments for vacatur and remand, which included failure to understand the loss of potential benefits by articulating satisfaction with the current rating. Thus, the Board does not find an effective verbal withdrawal, and the issue of entitlement to a disability evaluation in excess of 20 percent from March 27, 2018 remains on appeal. Regarding remand for VA examination, the Court clarified the responsibilities of a VA examiner and the Board with regard to describing additional functional loss during flare-ups of musculoskeletal disabilities. The Court explained that case law and VA guidelines anticipate that VA examiners must offer flare opinions based on estimates derived from information procured from relevant sources, including lay statements of Veterans. An examiner must do all that reasonably should be done to become informed before concluding that a requested opinion cannot be provided without resorting to speculation. The Court went on to note that an examination is inadequate when, even though the Veteran was not experiencing a flare at the time of the examination, it failed to ascertain adequate information, such as frequency, duration, characteristics, severity, and functional loss, regarding the Veteran's flares by alternative means. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). As such, upon remand, the Board will request a new VA examination as well as a retrospective opinion for the Veteran’s left and right knee disabilities. Given the Veteran's history of meniscus injury and meniscectomy surgeries, further development and adjudication of the left and right knee claims may provide evidence to support a separate rating. See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991), for the proposition that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources, the claims are inextricably intertwined. Here, separate ratings can be assigned for meniscus disabilities under Diagnostic Code 5259, if none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology. Lyles v. Shulkin, 29 Vet. App. 107 (2017). Diagnostic Code 5259 awards a 10 percent rating when there is symptomatic removal of the semilunar cartilage. Therefore, the Board concludes it would be inappropriate at this juncture to enter a final determination on the issue of whether separate ratings are warranted. While on remand, the agency of original jurisdiction should obtain updated treatment records. The matters are REMANDED for the following action: 1. Request the Veteran provide the appropriate releases for any outstanding VA and non-VA providers who have treated him for the disabilities on appeal. Thereafter, the records should be obtained and associated with the claims file. 2. Once the above development is completed, schedule the Veteran for a new VA examination. The examiner should include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing. Moreover, the examiner should ascertain from his review of the record and by asking the Veteran to provide a full description (if he is not experiencing a flare) any manifestations of additional loss due to flare-ups, including but not limited to severity, frequency, and duration. The Veteran is competent to report lay descriptions, and the reported manifestations should be considered and recorded in the examination when formulating the opinion. The examiner is asked to specifically address symptoms related to the left and right meniscus. The examiner must review the entire claims file, to include a copy of this REMAND and annotate the review was performed. If deemed necessary by the examiner, additional testing or specialty consultation/examination required to comply with the Remand request should be performed. The examiner is asked to express a retrospective opinion on functional loss during flare-ups or with repeated use over time for the left and right knee joints, considering symptoms such as pain, weakness, and fatigability or incoordination, for the period from February 20, 2009 to March 27, 2018. In doing so, the examiner should assess any additional functional impairment in terms of the degree of additional range-of-motion loss, if possible. The examiner is also asked to provide a retrospective estimate of range of motion testing for the left and right knee joints for pain on both active and passive motion and in weight-bearing and non-weight-bearing mode for the period between February 20, 2009 and March 27, 2018. The examiner is asked to specifically address symptoms related to the left and right meniscus from February 20, 2009 to March 27, 2018. As the requested opinion is retrospective, the examiner will necessarily be unable to observe the Veteran during the requested timeframe. Nonetheless, the examiner should provide an estimate based on the evidence of record, including previous VA examinations that contain range of motion testing, and the Veteran's lay descriptions of severity, frequency, duration, and other manifestations of additional functional loss experienced during flare-ups. The Veteran is competent to report lay descriptions, and the reported manifestations should be considered by the examiner to formulate the opinion. A rationale for any opinions expressed should be set forth. If the examiner cannot provide an opinion without resorting to speculation, he/she should clearly state if that the inability is due to a lack of knowledge of the medical community at large and provide rationale. 3. After completion of the above and any additional development deemed necessary, readjudicate the issues on appeal. If any benefit remains denied, furnish the Veteran and his representative a supplemental statement of the case and afford the opportunity to respond. If necessary, return the case to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Gipson, Associate 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.