Citation Nr: 21012887
Decision Date: 03/05/21	Archive Date: 03/05/21

DOCKET NO. 15-22 924
DATE: March 5, 2021

REMANDED

Entitlement to a rating in excess of 20 percent for a left knee injury with anterior cruciate lesion, s/p anterior cruciate ligament (ACL) reconstruction, residuals, is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from February 1988 to February 1992.

In August 2018, the Veteran presented sworn testimony during a Travel Board hearing in San Juan, Puerto Rico.  A transcript of the hearing has been associated with the claims file.

The Board previously remanded this claim in February 2019 and November 2020.

1. Entitlement to a rating in excess of 20 percent for a left knee injury with anterior cruciate lesion, s/p ACL reconstruction, residuals, is remanded.

The Veteran was afforded a VA examination most recently in November 2020.  The examiner noted that he used a brace and cane but concluded that there was no objective evidence of instability.  As noted by the Veteran’s representative, the prescribed use of a brace seems to suggest some level of instability.  Representative brief, February 2021.  The examiner failed to address why the need for a brace was not objective evidence of instability.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  Further, he failed to address the fact that the knee brace was prescribed by the Veteran’s VA physician.  VA treatment record, December 2020.  As such, this claim must be remanded for an addendum opinion that addresses the significance of knee brace.  

The Board notes that the regulations for rating a knee disability based on instability have changed effective February 7, 2021.  The new regulations provide for ratings based on persistent instability and the use of an assistive device (such as a cane) and bracing for ambulation.  See 38 C.F.R. § 4.71a, Diagnostic Code 5257.  In this case, it is unclear whether there is persistent instability, whether the brace is prescribed for instability or pain relief, or whether the cane is also prescribed by a physician.  Given the new regulations, the addendum opinion must address these questions so the Board may properly rate the claim.  

Additionally, as the claim is being remanded, the Board will take the opportunity to obtain updated VA treatment records, including any results of left knee x-rays ordered in December 2020.  

The matters are REMANDED for the following actions:

1. Obtain and associate with the claims file any VA treatment records dated from December 2020 to the present and relating to the Veteran’s left knee disability.

2. Thereafter, send the Veteran’s claims file to an appropriate clinician for an addendum opinion.  The Veteran may be recalled for examination if deemed necessary.  The examiner should address the following:

(a.) Does the need for a knee brace and cane suggest persistent instability, notwithstanding the testing results?

(b.) Is the Veteran’s knee brace prescribed for persistent instability?

(c.) Is the Veteran’s use of a cane prescribed for persistent instability?

 

 

YVETTE R. WHITE

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	M. Moore, 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.