Citation Nr: 21013932 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 18-06 594 DATE: March 10, 2021 REMANDED Entitlement to a disability rating in excess of 20 percent for a right knee disability is remanded. Entitlement to a disability rating in excess of 20 percent for a left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from July 2005 to September 2006. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a February 2016 rating decision of the Winston-Salem, North Carolina Regional Office (RO) of the Department of Veterans Affairs (VA). The Board notes that in a November 2017 rating decision, the RO discontinued the existing ratings for anterior tibial tendonitis of the right lower extremity and anterior tibial tendonitis of the left lower extremity and combined the disabilities with the service-connected right and left knee conditions, increasing each to 20 percent. The Veteran appeared at a hearing before the undersigned Veterans Law Judge in November 2019. A transcript of the hearing is in the Veteran’s file. In March 2020, the Board remanded the case for further development. Stegall v. West, 11 Vet. App. 268, 271 (1998). At her November 2019 Board hearing, the Veteran reported experiencing shin splints and muscle weakness. She noted that that her knees would give out and she reported wearing braces on her legs. A review of the record shows that diagnoses of degenerative arthritis of the left knee, chondromalacia patellae of both knees, plica syndrome of the left knee, anterior tibial tendonitis of the right knee, compartment syndrome of both knees, and shin splints have been provided during the appeal period. In the November 2015 VA examination report, it was noted that “shin splints” (medial tibial stress syndrome) were found in both knees. In the most recent VA examination, dated in March 2020, the report shows that the Veteran wore a brace and used a cane. The Board notes that, effective February 7, 2021, VA amended the criteria for rating musculoskeletal system and muscle injuries disabilities. See 83 Federal Register 76453 (November 30, 2020). VA published in the Federal Register the proposed rule for Schedule for Rating Disabilities: musculoskeletal system and muscle injuries on November 30, 2020. The summary in the Federal Register notes that the purposed of this revision is to ensure that the schedule uses current medical terminology and provided detailed and updated criteria for the evaluation of the musculoskeletal disabilities. The revised changes effected criteria for instability of the knee under Diagnostic Code 5257 and for impairment of the tibia and fibula under Diagnostic Code 5262. The Veteran’s service-connected bilateral knee disabilities are rated under Diagnostic Code 5262. As the medical record reflects that the Veteran has experienced shin splints and as a request for the Agency of Original Jurisdiction to consider whether separate ratings were warranted for lower extremity disorders was made in the March 2020 Board remand, in light of the November 2017 rating decision, was not provided, a remand is necessary. The Board finds that to fully and fairly evaluate the nature and severity of the Veteran’s service-connected lumbar bilateral knee disabilities, a new examination, to include evaluation under the new criteria for Diagnostic Codes 5257 and 5262, is needed. Barr v. Nicholson, 21 Vet. App. 303 (2007). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA orthopedic examination to evaluate the severity of her service-connected right knee and left knee disabilities. The examiner should provide an assessment of the current nature of the Veteran’s bilateral knee disabilities. Accordingly, the examiner is asked to describe the severity, frequency, and duration of all symptomatology associated with the condition. Also, all functional limitations present (a) after repetition over time and, separately, (b) during flare-ups should be reported. If for any reason the examiner is unable to conduct the required testing, he or she should clearly explain why that is so. The VA examiner should note the revised changes of the criteria for rating musculoskeletal system and muscle injuries disabilities, effective February 7, 2021, to include the change in criteria for instability of the knee under Diagnostic Code 5257 and for impairment of the tibia and fibula under Diagnostic Code 5262. With regard to Diagnostic Code 5257, the examiner should consider: a) the extent of any sprain or ligament tear (and repair thereof), b) the use of assistive devices (e.g., a cane, crutches, or a walker), c) the need for bracing for ambulation, and d) the extent and degree of any current instability. With regard to Diagnostic Code 5262, and medial tibial stress syndrome/shin splints, the examiner should consider: 1) the extent and duration of treatment; and 2) responsiveness to surgery, shoe orthotics, or other conservative treatment. The VA examiner should also note the lay statements by the Veteran, to include her testimony from the November 2019 Board hearing. The claims file must be reviewed. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination. 2. In readjudicating the Veteran’s claims, the Agency of Original Jurisdiction should consider whether separate ratings are warranted for lower extremity disorders. (See November 2017 rating decision). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A-L Evans, 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.