Citation Nr: 21013998 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 08-36 383 DATE: March 11, 2021 REMANDED Entitlement to a disability rating exceeding 10 percent for right knee limitation of motion prior to September 2, 2014 is remanded. Entitlement to a disability rating exceeding 20 percent for right knee limitation of motion beginning September 2, 2014 is remanded. Entitlement to a disability rating exceeding 10 percent for left knee limitation of motion is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1972 to July 1992. This appeal comes to the Board of Veterans’ Appeals (Board) from a June 2007 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a September 2010 hearing. The Board remanded these matters in January 2011, October 2014, and September 2017 to the Agency of Original Jurisdiction (AOJ) for further development. The Board denied the Veteran’s claims in a November 2018 decision, and the Veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC). In September 2019, CAVC granted a Joint Motion for Partial Remand (JMPR) vacating the Board’s decision in part and remanding these matters to the Board in order to address deficiencies in prior VA examinations. The JMPR notes that the February 2018 VA knee examination is inadequate because the examiner did not record wherein the Veteran’s range of motion his pain started. The JMPR also notes that while the examiner said that there was no pain on weightbearing, the examiner contradicted that finding later in the examination. The JMPR notes that the April 2007 VA examiner did not note an initial degree where pain started in the range of motion and also did not address the effect of Veteran’s noted flare-ups on his range of motion. Additionally, the JMPR notes that the August 2011 VA examiner did not note when the pain started in the Veteran’s range of motion. The Board remanded this matter to the AOJ in April 2020 to provide the Veteran with an adequate VA examination addressing the concerns identified in the JMPR. While the AOJ obtained an additional VA examination of the Veteran’s knees in November 2020 and issued a November 2020 Supplemental Statement of the Case, the rating criteria pertinent to the evaluation of the Veteran’s knee disabilities has changed effective February 7, 2021. See, e.g., Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). Accordingly, additional development is necessary to assist the Board in determining whether the evidence supports assigning the Veteran higher disability ratings under the new criteria. On remand, the AOJ should obtain an additional opinion from an appropriate medical professional assessing the severity of the Veteran’s knee disabilities under the revised rating criteria. The matters are REMANDED for the following action: 1. The AOJ should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records. The AOJ should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran’s claims file. 2. After associating all outstanding relevant records with the Veteran’s claim’s file, the AOJ should obtain an opinion from an appropriate medical professional of the severity of the Veteran’s bilateral knee disabilities under the revised rating criteria for the knees effective February 7, 2021. For example, the AOJ should ensure that the examiner clarifies whether the severity of the Veteran’s knee disabilities satisfy one of the following criteria for a 30 percent rating under the revised rating criteria for knee instability: (i) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation, (ii) a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257, Note (1) and Note (2)). If the examiner is unable to provide an opinion on these matters, the examiner must state whether the inability to render an opinion is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. After completing the above action and any other necessary development, the claim must be readjudicated. If a claim remains denied, a Supplemental Statement of the Case must be provided to the Veteran and current representatives. After the Veteran has had adequate opportunity to respond, the appeal must be returned to the Board for appellate review. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Duffy, 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.