Citation Nr: 21014824 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 09-37 301A DATE: March 15, 2021 REMANDED Entitlement to a disability rating higher than 10 percent for service-connected right knee chondromalacia and osteoarthritis is remanded. Entitlement to a disability rating higher than 10 percent for service-connected left knee chondromalacia and osteoarthritis is remanded. Entitlement to a disability rating higher than 20 percent for service-connected right knee medial-lateral instability, with consideration of a compensable rating prior to January 3, 2017, is remanded. Entitlement to a disability rating higher than 20 percent for service-connected left knee medial-lateral instability, with consideration of a compensable rating prior to January 3, 2017, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1974 to August 1978. The local Regional Office (RO) granted service connection for chondromalacia of the right and left knees (so for bilateral knee disability) in a September 2009 rating decision and assigned an initial 10 percent disability rating for each knee, retroactively effective from June 17, 2007, the date of receipt of these claims. In response, the Veteran filed a Notice of Disagreement (NOD) in October 2009 contesting those initial ratings and, after receiving a Statement of the Case (SOC), ultimately completed the steps needed to “perfect” his appeal to the Board by also filing a Substantive Appeal (VA Form 9) in April 2011. The Veteran subsequently testified in support of these claims during a hearing at the RO in February 2012 before the undersigned Veterans Law Judge of the Board. A transcript of the proceeding is of record. Following that February 2012 hearing, the Board remanded the Veteran’s claims back to the RO (Agency of Original Jurisdiction (AOJ)) in April 2012 for further development and consideration – including to obtain outstanding VA treatment records and to have him reexamined to reassess the severity of his bilateral knee disability. The Veteran had that additional VA examination in October 2012 and an addendum medical opinion also subsequently was obtained in March 2013. After receiving the claims back from the RO, the Board denied them in a July 2014 decision. The Veteran then appealed to the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC). In a March 2016 Memorandum Decision, the CAVC vacated (set aside) the Board’s July 2014 decision denying these claims, finding that the May 2008 and October 2012 VA examinations upon which the Board had relied in making its determination were inadequate because the reports failed to consider whether pain during flare-ups limited the Veteran’s functional ability as required by Deluca v. Brown, 8 Vet. App. 202, 206 (1995). So, in September 2016, the Board in turn remanded these claims to the RO (AOJ) for this further directed development. To that end, the Veteran underwent two additional VA examinations in January 2017. And, in an April 2017 rating decision, the RO (AOJ) granted separate 20 percent ratings for his left and right knee disabilities under 38 C.F.R. § 4.71a, Diagnostic Code 5257, for medial-lateral instability effective January 3, 2017, the date of his VA examination on remand showing this additional impairment. See VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997); VAOPGCPREC 9-98 (August 14, 1998). In October 2017, however, the Board again remanded the claims, but this time finding that the January 2017 VA examinations did not comply with the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016). Specifically, neither of those January 2017 VA examinations had provided left or right knee range of motion findings on active versus passive motion nor in weight-bearing and non-weight-bearing. As such, the Veteran had a still additional VA examination in November 2017. However, the Board later determined that both the January 2017 and November 2017 VA examiners had neglected to address positive findings of arthritis and a meniscus issue that clearly were part of the record at the time of those examinations. Because those VA examinations were inadequate to assess the then current severity of the Veteran’s bilateral knee disability, the Board again remanded these claims in January 2019 to obtain an addendum medical opinion addressing this relevant evidence. As a result, a VA examination was most recently obtained in October 2019. This VA examiner indicated the Veteran had meniscal tears as well as osteoarthritis in both knees but also indicated that neither condition was related to his service-connected bilateral knee disability because the diagnoses occurred outside of the appeal period. But, as the RO (AOJ) correctly indicated in its August 2020 Deferred Rating Decision, that rationale is inadequate since the appeal period began in 2007 and the claims resultantly are still pending. An addendum medical opinion consequently was obtained in August 2020, and the VA examiner clarified there is a confirmed diagnosis of a meniscal tear in the Veteran’s right knee only and concluded that it is not a progression of his service-connected chondromalacia with medial-lateral instability, but instead the result of a separate unrelated injury. Yet, the examiner failed to provide any rationale for this conclusion, which is where most of the probative value of an opinion is derived. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).   Because it is possible to receive a separate rating under the meniscal codes (i.e., DCs 5258 and 5259), apart from any ratings under DCs 5003, 5010, 5257, 5260 and 5261, the Board finds that still more medical comment and explanation are needed before readjudicating these claims. See Lyles v. Shulkin, 29 Vet. App. 107 (2017). Furthermore, the August 2020 addendum medical opinion does not address the VA examiner’s October 2019 finding of osteoarthritis in the left knee and whether it, too, is a progression of the Veteran’s service-connected bilateral knee disability. It seemingly is since the Veteran’s chondromalacia of the Veteran’s left and right knees now also includes the additional designation of “osteoarthritis”. Lastly, the Veteran submitted a statement in October 2020 suggesting his bilateral knee disability has worsened appreciably – even since the October 2019 VA examination that he underwent following the Board’s prior remand of these claims. Notably, he reported needing over-the-counter pain medicine every four hours to manage his pain and that he can no longer walk further than 20 feet at a time. He added that he now also needs assistance when standing from a seated position. Thus, he needs to be reexamined to reassess the severity of his knee disabilities. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Accordingly, these claims are REMANDED for the following still additional development and consideration: Schedule the Veteran for another VA examination again reassessing the severity of his left and right (bilateral) knee disabilities. A copy of this remand and all relevant medical and other records must be made available to the examiner for review. The examiner must review the pertinent evidence, including the Veteran’s lay assertions, and undertake all indicated testing and evaluation needed to address all relevant rating criteria. The examiner should report all signs and symptoms necessary for rating the Veteran’s bilateral knee disability under the applicable rating criteria. To this end, the examiner should provide the range of motion in degrees of both knees. In so doing, the examiner should test the Veteran’s range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing, if possible. If the examiner is unable to conduct the required testing, he or she should clearly discuss why in the report. The presence of objective evidence of pain, premature or excess fatigability, incoordination and weakness also should be noted, as should any additional disability (including additional limitation of motion) due to these factors. The examiner shall inquire as to periods of flare-up and note the frequency and duration of any such flare-ups. Any additional impairment on use or in connection with flare-ups should be described in terms of the degree of additional range of motion loss. The examiner should specifically describe the severity, frequency, and duration of flare-ups, name the precipitating and alleviating factors, and estimate, per the Veteran, to what extent, if any, such flare-ups affect functional impairment. 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 why that is so. The VA examiner must address whether the Veteran’s confirmed right knee meniscal tear is related to, or a progression of, his service-connected bilateral knee disability – whether owing to the chondromalacia and osteoarthritis or medial-lateral instability. Also, regarding the bilateral knee instability, the VA examiner should indicate whether there is medical prescription for an assistive device such as a brace, cane or walker. In reassessing the severity of the Veteran’s bilateral knee disability, the examiner is asked to address the extent to which the functional impairment caused by these disabilities impair the Veteran’s ability to meet the demands of a substantially gainful job, whether sedentary or physical, and the timeframe in which such impairment arose. All opinions and conclusions reached by the examiner must be explained. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Mukherjee 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.