Citation Nr: 21014319 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 16-18 014 DATE: March 11, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for right knee strain with degenerative disease is denied. Entitlement to an initial disability rating in excess of 10 percent for left knee strain is denied. Entitlement to an initial disability rating in excess of 10 percent for right knee instability is denied. REMANDED Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities, is remanded. FINDINGS OF FACT 1. The Veteran’s right knee strain and degenerative disease has been manifested by pain, swelling, crepitus, limited range of motion, functional limitations, and reports of weakness, but not by flexion limited to 30 degrees or less. 2. The Veteran’s left knee strain has been manifested by pain, swelling, crepitus, limited range of motion, reports of instability and weakness, and functional limitations, but not by flexion limited to 30 degrees or less. 3. The Veteran’s right knee instability is no worse than slight. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for right knee strain with degenerative disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 2. The criteria for an initial disability rating in excess of 10 percent for left knee strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 3. The criteria for an initial disability rating in excess of 10 percent for right knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from January 1993 to July 1994. These matters come before the Board of Veterans’ Appeals (Board) from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Veteran testified at a hearing before the undersigned. A transcript of the hearing is associated with the electronic claims file. In September 2020, the issues on appeal were remanded by the Board for additional development. The matters have been returned to the Board for review. In the September 2020 decision, the Board adjudicated and granted the issue of entitlement to a finding of individual unemployability (TDIU) effective January 1, 2020, the date that the Veteran was unable to work, and that issue is no longer on appeal. In a November 2020 rating decision, the RO assigned a separate 10 percent rating for right knee instability. Thus, the Board has added this issue on appeal as it is part and parcel of the claim for an increased rating for right knee strain with degenerative disease. The Board notes that additional records have been associated with the electronic claims file since the November 9, 2020, Supplemental Statement of the Case (SSOC). However, that evidence is not relevant, and a waiver of RO consideration of the additional evidence is not required. VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. Appropriate notice was provided in June 2014. The RO associated the Veteran’s service and VA and private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. In September 2020, the Board requested that the RO obtain the Veteran’s Vocational Rehabilitation and Education (VR&E) folder. In September 2020 correspondence, it was noted that a folder did not exist and that any VR&E records would be included in the Veteran’s electronic claims folder. Accordingly, the Board’s remand directive was substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008). In addition, the Board notes that the Veteran was provided a VA examination for his knees in February 2015. The examination report did not indicate whether the Veteran had pain on passive range of motion testing, weight-bearing or non weight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). Therefore, the range of motion findings are not appropriate for evaluation purposes. Though the Veteran has also alleged that the February 2015 VA examination was inadequate because it was cursory and short and the examiner did not use measuring tools, the Board has reviewed the examination report and finds that the examiner completed comprehensive testing of the knees including stability testing. Thus, the Board finds that the February 2015 examination findings, other than range of motion findings, are adequate for evaluation purposes. Moreover, the Veteran was provided an adequate VA examination for his knees in January 2020. Though that examiner could not provide opinions as to estimated range of motion loss during flare-ups and repeated use, the examiner fully explained the reasoning. The examiner stated that it was not possible to comment because the Veteran’s functional limitations varied during flare-ups and repeated use depending on duration and that general medical knowledge was insufficient to reasonably estimate range of motion loss. The Board finds this opinion and rationale adequate under Sharp v. Shulkin, 29 Vet. App. 26 (2017). In addition, the Veteran was also provided an adequate VA examination in August 2020. As such, VA has satisfied its duty to assist. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Rating- In general Disability ratings are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate ratings may be assigned for separate periods of time based on the facts found. In other words, the ratings may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran is currently assigned 10 percent disability ratings for his left and right knee strain under 38 C.F.R. § 4.71a, Diagnostic Code 5260, for painful motion. In this respect, the February 2015 rating decision granted service connection for right knee strain with degenerative disease assigning a 10 percent disability rating effective September 21, 2004, and granted service connection for left knee strain assigning a 10 percent disability rating effective September 21, 2004. Under 38 C.F.R. § 4.59, functional loss due to painful motion is to be rated to at least the minimum compensable rating for a particular joint. If the limitation of motion is not compensable under the applicable DC, the minimum compensable rating is assigned. Further, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Diagnostic Code 5260 provides ratings based on limitation of flexion. A noncompensable rating is assigned for limitation of flexion of the leg to 60 degrees. A 10 percent rating is warranted for limitation of flexion to 45 degrees. A 20 percent rating is warranted for limitation of flexion to 30 degrees. A 30 percent rating is warranted for limitation of flexion to 15 degrees. 38 C.F.R. § 4.71a. Diagnostic Code 5261 provides the criteria for limitation of extension of the leg. A noncompensable (0 percent) rating is assigned for limitation of extension to 5 degrees. A 10 percent rating is assigned for limitation of extension to 10 degrees. A 20 percent rating is assigned for limitation of extension to 15 degrees. A 30 percent rating is assigned for limitation of extension to 20 degrees. A 40 percent rating is assigned for limitation of extension to 30 degrees. A 50 percent rating is assigned for limitation of extension to 45 degrees. 38 C.F.R. § 4.71a. Concerning Diagnostic Code 5257, the Board notes that the rating criteria have been revised effective February 7, 2021. 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). The new rating criteria reads as follows: For recurrent subluxation or lateral instability, a 30 percent rating is warranted for 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. A 20 percent rating is warranted for one of the following: (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g. cane(s), crutch(es), walker) for ambulation or (b) unrepaired or failed repair of complete ligament tear causing persistent instability and a medical provider prescribes either an assistive device (e.g, cane(s), crutch(es), walker) or bracing for ambulation. A 10 percent rating is warranted for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g. cane(s), crutch(es), walker) or bracing for ambulation. For patellar instability, a 30 percent rating is warranted for 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. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription for one of the following: a brace, cane, or walker. A 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. Note (1) to the criteria states that: For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2) states that: 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). Under the old criteria, Diagnostic Code 5257 provides a 10 percent rating for recurrent subluxation or lateral instability that is productive of slight impairment of the knee. A 20 percent rating is warranted for recurrent subluxation or lateral instability that is productive of moderate impairment of the knee. A 30 percent rating is warranted for recurrent subluxation or lateral instability that is productive of severe impairment of the knee. A 30 percent rating is the maximum schedular disability rating available under this code. Concerning application of the new Diagnostic Code 5257, if a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Normal range of motion is from 140 degrees on flexion to 0 degrees on extension. See 38 C.F.R. § 4.71, Plate II. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). In Correia, 28 Vet. App. 158, the U.S. Court of Appeals for Veterans Claims held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” Entitlement to a disability rating in excess of 10 percent for right knee strain with degenerative disease Entitlement to a disability rating in excess of 10 percent for left knee strain Entitlement to an initial rating in excess of 10 percent for right knee instability VA and private treatment records show complaints of knee pain and crepitus. A February 2008 VA treatment record shows that the Veteran reported that his right knee swells, causes pain and sometimes pops a bit. He stated that his knee wanted to buckle backwards at times. A February 2016 VA treatment record shows reports of mild to moderate pain in knee joints with walking and prolonged standing and mild crepitus in knee joints. A March 2016 VA treatment record reveals that the Veteran was fit for knee braces and that his knees will swell up. A February 2020 VA treatment record shows reports of dull, sharp, and stabbing pain made worse by exercise. It was indicated that pain interfered with activities of daily living, relationships, mood, concentration, sleep, mobility, and toilet. In February 2015, the Veteran was provided a VA examination for his knees. As discussed above, the range of motion findings are not considered adequate as the examiner did not indicate whether there was pain on passive range of motion or in weight-bearing and non weight-bearing. However, the Board will discuss the other findings made on examination and the Veteran’s reported symptoms. The report shows that the Veteran was diagnosed with bilateral knee strain and degenerative disease of the right knee. The Veteran reported that he had sharp pain and swelling all the time. He reported that his knee felt very week and that the right hyper-extended. He reported flare-ups described as swelling and pain and no movement. The examiner indicated that there was pain on movement and pain on palpation. Muscle strength testing was normal in all areas tested and stability testing was normal. There was no evidence of recurrent subluxation. The Veteran did not use assistive devices. A May 2015 independent medical examination, completed by a private physician, shows that the Veteran continued to have pain in both knees and that the right was worse than the left most of the time. He had burning behind his kneecaps and reported that his right knee occasionally hyperextended. He stated that he almost drowned in the lake as a result. He also stated that he was unable to do impact activity. The Veteran had severe pain with significant weather changes. He had pain going up and down stairs, especially going down the stairs. He had pain with prolonged sitting, standing, twisting, turning, bending, stooping, squatting, and kneeling. Examination of the right knee showed a moderate amount of crepitation with ranging, negative McMurray’s sign, and negative anterior and mild positive posterior drawer’s sign. The Veteran’s left knee had crepitus with ranging, negative McMurray’s sign, negative anterior posterior drawer sign, and was stable to varus and valgus stressing. It was noted that he ambulated with a slightly antalgic gait. In a range of motion worksheet attached to the examination, it shows that the Veteran’s left knee exhibited flexion to 80 degrees and extension to 0 degrees and the right knee exhibited flexion to 90 degrees and extension to 0 degrees. The Veteran testified that his private physician used measuring tools to complete range of motion testing. In January 2020, the Veteran was provided a VA examination for his knees. The Veteran was diagnosed with bilateral knee strain and degenerative disease of the right knee. The Veteran reported that he experienced a lot of knee pain and used knee braces, Ibuprofen, heat, and elevation. He stated that his knees controlled everything. The Veteran reported daily right knee flare-ups of a moderate to severe degree. He stated that the flare-ups lasted all day, were precipitated by everything—walking, and movements, and that the flare-ups were alleviated by Ibuprofen, heat, and cold packs. Concerning left knee flare-ups, the Veteran stated that his knee hurt every day of a moderate to severe degree. He stated that the flare-ups lasted all day and were precipitated by sitting, standing, and walking. The flare-ups were alleviated by heat, ice packs, and Ibuprofen. The Veteran also reported functional loss or impairment described as no long periods of walking, standing, or any exercise and that he was gaining weight. On examination, the right knee exhibited flexion to 100 degrees and extension to 0 degrees. The range of motion itself did not contribute to functional loss. There was pain on flexion of the right knee and pain on examination caused functional loss. There was pain on weight-bearing and evidence of crepitus. There was mild pain on the knee joint line. Examination of the left knee showed flexion to 110 degrees and extension to 0 degrees. The range of motion itself does not contribute to functional loss. Pain on examination caused functional loss, flexion exhibited pain, mild pain on the joint line, pain on weight-bearing, and objective evidence of crepitus. Repetitive-use testing of the knees did not result in functional loss or loss of range of motion. The examiner noted that pain and weakness caused functional loss of the right knee during periods of repeated use and flare-ups and pain caused functional loss of the left knee during periods of repeated use and flare-ups. The examiner determined that an opinion as to estimated range of motion loss during periods of flare-ups and repeated use could not be provided based on speculation. The examiner explained that it was not possible to accurately estimate range of motion because the Veteran’s limitations were variable depending on the duration of the repetitive use and flare-ups. The examiner also noted that the medical records did not sufficiently identify prior range of motion during flare-ups or repetitive motion. General medical knowledge of the Veteran’s joint condition was insufficient to reasonably estimate range of motion for each plane of motion. Thus, the examiner found that it would be mere speculation to estimate range of motion loss in these circumstances. With respect to the right and left knees, there were additional contributing factors of disability identified as pain, stiffness, disturbance of locomotion, interference with sitting, and interference with standing. Muscle strength testing was normal in all areas tested. There was no ankylosis. There was no history of recurrent subluxation or instability. Joint stability testing was normal. Concerning functional impact on work, the Veteran could not climb in and out of his driver’s seat. Regarding Correia, there was objective evidence of pain with passive range of motion testing, and no evidence of pain with non weight-bearing of either knee. The August 2020 VA examination report shows that the Veteran was diagnosed with right knee strain with degenerative disease and left knee strain. The Veteran reported that he experienced knee pain every day and immobility. He stated that the way he walked affected his hips and the right side of his back hurt. He wore bilateral knee braces daily, Tizanidine for muscle spasms, Ibuprofen 800 mg. for pain, and hydrochlorothiazide for fluid removal on legs. The Veteran reported flare-ups of both knees described as pain on activity that sometimes caused a popping. The flare-ups occurred four times per year with a severity of 10/10 and lasted for 3 weeks. The Veteran reported functional loss or functional impairment of the right and left knees described as not being able to do anything on the ground or off the ground. He could not do a tire rotation, play golf, or bowl. On examination, the right knee exhibited flexion to 95 degrees and extension to 0 degrees. Pain was noted on examination that caused functional loss. Flexion and extension exhibited pain. There was evidence of pain with weight bearing and evidence of crepitus. The left knee exhibited flexion to 105 degrees and extension to 0 degrees. There was no pain on examination. There was evidence of pain with weight bearing and objective evidence of crepitus. Concerning repetitive use of both knees, there was no additional loss of function or range of motion after three repetitions. Regarding repeated use over time, the right knee would be limited by pain and weakness and the examiner estimated that right knee flexion would be limited to 85 degrees and extension would be 0 degrees. Regarding repeated use of the left knee, the left knee would be limited by pain and weakness and the examiner estimated that flexion would be limited to 95 degrees and extension would be 0 degrees. With respect to flare-ups of the right knee, pain, fatigue, and weakness would limit flexion to 85 degrees and extension to 0 degrees. With respect to left knee flare-ups, pain would limit flexion to 95 degrees and extension to 0 degrees. There were no additional contributing factors of disability. Muscle strength testing was normal in all areas tested. There was no ankylosis. There was no history of recurrent subluxation or instability. Stability testing was normal. It was noted that the Veteran had shin splints, but they did not impact the range of motion of the knee or ankle and it was acute/resolved. It was noted that the Veteran constantly used knee braces. Concerning impact on work, the Veteran was not able to do anything on the ground or off the ground and could not do a tire rotation, play golf, or bowl. He was unable to tolerate prolonged sitting, standing, or walking. Regarding Correia, there was no objective evidence of pain on passive range of motion testing for the right and left knees, and no objective evidence of pain when the joint was used in non weight bearing. August 2020 x-rays were negative for the right and left knees. VR&E records show that the Veteran reported that his disabilities impacted his ability to work and that he used knee braces. In a counseling report, it was noted that the Veteran had chronic bilateral knee pain and had limited standing for one hour and limited sitting for one hour. It was noted that the VA Medical Center was considering a knee replacement. The Veteran reported that if he was on his knees for 20 minutes, that he was down for the next two days. In October 2020, the Veteran was provided another independent medical examination by a private physician. The Veteran had difficulty moving his knees and bending his knees. The physician noted that the Veteran had instability in his knees, the right much more than the left. It was noted that he would have an MRI soon to determine if he needed a right knee replacement. He walked with an antalgic gait and had difficulty standing, walking, and bending. Examination of the right knee revealed crepitation on movement of the patella, moderate laxity, and decreased range of motion with 100 degrees of flexion, and full extension. Examination of the left knee revealed crepitation of the patella, ligaments were intact, and there was decreased range of motion with 110 degrees of flexion and full extension. The Board finds that the Veteran’s left and right knee disabilities do not warrant ratings in excess of 10 percent under Diagnostic Code 5260. There is no evidence that the right or left knee is limited to 30 degrees or less. In addition, separate ratings are not warranted for left and right knee disabilities under Diagnostic Code 5261. The evidence does not show that right or left knee extension is limited to 10 degrees. Though the Board notes that the Veteran has reported that this knee would hyperextend, he is not considered competent to provide the amount of degrees concerning limitation of extension. The Board attributes greater probative value to the objective medical findings of record that were completed with the proper measuring instruments and only show normal extension to 0 degrees. Even considering additional functional impairment during flare-ups and periods of repeated use, the evidence does not reflect that the Veteran’s flexion would be limited to 30 degrees or less, or; extension limited to 10 degrees. In this respect, the August 2020 VA examiner considered the Veteran’s reports of flare-ups and functional loss or impairment of the joint regardless of repetitive use. The examiner estimated that, during repeated use, the Veteran’s right knee flexion would be limited to 85 degrees and right knee extension would be limited to 0 degrees and the left knee flexion would be limited to 95 degrees and left extension would be limited to 0 degrees. Concerning flare-ups, the examiner determined that the Veteran’s right knee flexion would be limited to 85 degrees and extension limited to 0 degrees and the left knee flexion would be limited to 95 degrees and extension limited to 0 degrees. Accordingly, higher ratings under Diagnostic Code 5260 are not warranted and separate ratings under Diagnostic Code 5261 are not warranted. Further, the Board finds that a rating in excess of 10 percent is not warranted for right knee instability. Though the October 2020 private examination report indicated moderate laxity of the right knee, the evidence does not otherwise show that any instability would be more than slight. Indeed, the October 2020 private examination report does not reflect stability testing. The Board attributes great probative value to the August 2020 VA examination report which included comprehensive stability testing. The August 2020 VA examiner determined that the Veteran did not have recurrent subluxation or history of lateral instability. Joint stability testing was normal. Accordingly, a rating in excess of 10 percent is not warranted for right knee instability. Moreover, the Board notes that the May 2015 independent medical examination report shows that there was a mild positive posterior drawer’s sign. However, the report did not include any assessments of instability and the record does not support the assignment of a separate rating for right knee instability prior to October 14, 2020, the date of the independent medical examination report. Finally, there is no evidence of recurrent subluxation that would warrant a higher rating under Diagnostic Code 5257. Concerning the new criteria effective February 7, 2021, the Board notes that all evidence pre-dates that criteria and criteria may not be applied prior to the February 7, 2021 effective date. Moreover, the Board finds that a higher rating would not be warranted under the new criteria given that the Board finds that the VA examination reports are the most probative evidence and reflects normal stability testing; there is no “persistent instability.” Thus, a higher rating is not warranted. The Board also finds that the Veteran is not entitled to a separate rating for left knee instability. The October 2020 private physician indicated that the Veteran had instability in both knees, right greater than left. The Board recognizes that Diagnostic Code 5257 does not require objective medical evidence of lateral instability for a rating to be assigned. English v. Wilkie, 30 Vet. App. 347, 353 (2018). However, the October 2020 physical examination findings do not show any findings of instability. In addition, the Board attributes great probative value to the January 2020 and August 2020 VA examination reports. The VA examiners determined that the Veteran did not have history of lateral instability and joint stability testing was normal. Accordingly, a separate rating for left knee instability is not warranted. Further, there is no evidence of recurrent subluxation that would warrant a rating under Diagnostic Code 5257. Finally, under the new criteria effective February 7, 2021, the Board notes that all evidence pre-dates that criteria and the new criteria may not be applied prior to the February 7, 2021 effective date. Moreover, the Board finds that a separate rating would not be warranted as the most probative evidence of record detailed above, including the January and August 2020 VA examination reports do not reflect findings of “persistent instability.” In addition, the evidence does not reflect ankylosis, dislocation or removal of cartilage, or malunion of the tibia and fibula, or genu recurvatum. Concerning shin splints, the January 2020 VA examination report noted that the shin splints were acute and resolved and did not impact the range of motion of the knee or ankle. Accordingly, Diagnostic Codes 5256, 5258, 5259, 5262, and 5263 are not for application. A preponderance of the evidence is against the Veteran’s claims and higher ratings are not warranted for the left and right knee disabilities. REASONS FOR REMAND In September 2020, the Board remanded the Veteran’s claim for service connection for hypertension for additional development, including a VA examination and opinions. The VA examiner was asked to provide an opinion as to whether hypertension was caused by active service and to provide an opinion as to whether the Veteran’s hypertension was caused or aggravated by his service-connected disability, to include consideration of his obesity. See Walsh v. Wilkie, 32 Vet. App. 300 (2020). The October 2020 VA examiner provided a negative opinion concerning whether hypertension was directly related to service. However, the examiner provided conclusory rationale, noting that there was “insufficient evidence in the Veteran’s medical record to support the claimed hypertension is related to service.” The Board finds the opinion inadequate; remand is required to obtain a new opinion. Next, concerning secondary service connection, the examiner determined that the Veteran’s obesity was not caused by his service-connected disabilities and that obesity was not a substantial factor in causing his hypertension. However, the Board finds that the examiner’s rationale is insufficient. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examiner simply noted that obesity is caused by taking in more calories than one burns without considering the Veteran’s reports that he could not exercise due to his service-connected disabilities. In addition, the examiner stated that obesity was not a substantial factor in causing the Veteran’s hypertension because for most adults, there was no identifiable cause. However, the examiner relied on medical literature, but did not consider the Veteran’s own personal history and risk factors. A new opinion is required. The matters are REMANDED for the following action: 1. Request an addendum opinion concerning the etiology of the Veteran’s hypertension from a suitably qualified examiner. The electronic claims file must be made available for review. The examiner must address the following: a. Opine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s hypertension was caused or aggravated by active service. b. Opine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s service-connected disabilities caused the Veteran to become obese or aggravated the Veteran’s obesity. Both causation and aggravation must be addressed. c. Is obesity a substantial factor in causing the Veteran’s hypertension? d. Opine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s service-connected disabilities caused or aggravated the Veteran’s hypertension. A full and complete rationale must be provided for any opinion reached. The examiner must address the private physician’s opinion noting that the Veteran gained weight due to his service-connected knee and back disabilities and that he developed high blood pressure as a result and the Veteran’s reports that he was unable to exercise due to his service-connected disabilities. In addition, the examiner must consider the Veteran’s own history and risk factors for developing hypertension. 2. Then, readjudicate the remanded matter, and if still denied, issue an appropriate supplemental statement of the case and return the matter to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Seay, 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.