Citation Nr: 21012576 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 13-21 992A DATE: March 4, 2021 REMANDED Entitlement to a rating in excess of 10 percent for right knee degenerative arthritis and patellofemoral pain syndrome is remanded. Entitlement to a rating in excess of 10 percent for right knee degenerative arthritis and patellofemoral pain syndrome with instability is remanded. Entitlement to a rating in excess of 20 percent for left knee degenerative arthritis and patellofemoral pain syndrome is remanded. Entitlement to a rating in excess of 10 percent for left knee degenerative arthritis and patellofemoral pain syndrome with instability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1969 to June 1971. These matters come before the Board of Veterans’ Appeals (Board) on appeal from July 2013 and May 2020 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. As an initial matter, the Board notes that in a May 2020 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for both right and left knee disabilities based upon instability, in association with the Veteran’s increased rating claims for his bilateral knee disability, and assigned separate 10 percent ratings for each knee, effective March 28, 2012. The AOJ also increased the Veteran’s left knee disability to 20 percent disabling from March 28, 2012, the date of the Veteran’s increased rating claim. The Board notes that the grant of an increased rating during an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded for his left knee disability, the claim is still in controversy and on appeal. Id. Additionally, because the separate 10 percent awards for the Veteran’s right and left knee instability are part and parcel of the Veteran’s bilateral knee increased rating claims, the matters remain at issue before the Board. See id. Additionally, the record reflects that the Veteran received a letter, in October 2020, indicating that he requested a Travel Board hearing. Upon further review of the record, the Veteran does not have a pending hearing request. In another October 2020 letter, VA notified the Veteran that a hearing had already been conducted for his appeal and that his appeal would be adjudicated based on his prior hearing transcript and other evidence of record. The Veteran’s October 2015 Board hearing testimony will be considered as evidence in this decision. Entitlement to increased ratings for the service-connected right and left knee disabilities Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Unfortunately, the Board cannot make a fully informed decision on the Veteran’s increased rating claims, because the last VA examination, in October 2019, is inadequate and does not provide the requisite findings required under Correia v. McDonald, 28 Vet. App. 158 (2016). Specifically, in Correia, the United States Court of Appeals for Veterans Claims (Court) concluded that 38 C.F.R. § 4.59 requires VA examinations, whenever possible, to include joint testing for pain on both active and passive range of motion, as well as with weightbearing and non-weightbearing, and that if an examiner is unable to conduct the required testing or concludes that such is unnecessary, he or she should clearly explain why that it so. 28 Vet. App. 158, 168-170. (2016). Here, although the October 2019 VA examiner found that the Veteran exhibited pain with weight-bearing, with non-weight-bearing, and with passive range of motion for both knees, the examiner did not provide these range of motion measurements (on weight-bearing, non-weight-bearing, and passive range of motion) nor provide an explanation for her failure to do so. Additionally, although the October 2019 VA examiner found that the Veteran’s right and left knee exhibited pain with flexion and that the Veteran’s pain caused functional loss, the VA examiner did not record the range of motion measurements for where pain began. Accordingly, a remand is warranted for a VA examination that includes all range of motion testing, including where pain begins, in order to more accurately assess the severity of the Veteran’s disabilities and to comply with the provisions under Correia. The Board notes that as an additional examination will be provided to assess the Veteran’s bilateral knee disability, further evidence, through examination, will also be provided to address his current left and right knee instability and may impact his claims. Additionally, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the Evaluation of musculoskeletal disabilities.” Id. Importantly, Diagnostic Code 5257, pertaining to instability, was amended. As such, a further VA knee examination, that addresses the revised criteria, is also warranted. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the Veteran’s claims file. The last VA treatment of record is dated February 2018. 2. Provide the Veteran with another opportunity to identify any outstanding private treatment records relevant to his claims. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. 3. Then, schedule the Veteran for an updated VA examination to determine the severity of his bilateral knee disabilities. The claims file, including a copy of this Remand, must be made available to and be reviewed by the examiner. All indicated testing should be accomplished and all symptomatology associated with the disabilities should be identified. The examiner should respond to the following: (a) The examiner MUST TEST the Veteran’s range of motion on active and passive motion, on weight-bearing and non-weight-bearing, if possible, and record the range of motion measurements. (b) If there is evidence of pain on motion, the examiner must indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination results in any loss of range of motion. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. (c) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use due to the Veteran’s right and left knee disabilities. The examiner should state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups, if any, he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his bilateral knees and after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion ESTIMATING any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. (d) If it is not feasible to determine the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why that is so. The examiner is further advised that the inability to provide an opinion without resorting to speculation must be based on the limitation of knowledge in the medical community at large and not a limitation - whether based on lack of expertise, insufficient information, or unprocured testing - of the individual examiner. (e) The examiner should also state whether there is any recurrent subluxation, lateral instability, or patellar instability of the right and/or left knee, and if so, DESCRIBE the severity of any instability or subluxation, to include whether the Veteran is prescribed assistive devices for ambulation related to such. The Board notes that the October 2019 VA examiner noted the Veteran’s right and left knee were very unstable during joint stability testing.   Any opinion expressed by the VA examiner should be accompanied by a complete rationale. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Purcell, 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.