Citation Nr: 21016223 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 11-32 584 DATE: March 22, 2021 REMANDED Entitlement to a rating in excess of 10 percent for instability of the left knee is remanded. Entitlement to a rating in excess of 10 percent for limitation of flexion of the left knee is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from October 1988 to October 1992. This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter the Court) in June 2018, granting a joint motion for remand (JMR) vacating an August 2017 Board decision. The issues on appeal arose from an October 2009 rating decision by the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA). The case was remanded for additional development in January 2019. In May 2016, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. The transcript of that hearing is of record.   1. Entitlement to a rating in excess of 10 percent for instability of the left knee is remanded. 2. Entitlement to a rating in excess of 10 percent for limitation of flexion of the left knee is remanded. Although this case was previously remand, the Board finds that additional development is required. The Board’s January 2019 remand directives for a VA examination included instructions that the examiner must address and reconcile inconsistencies between the Veteran’s assertions throughout the appeal period that he has knee instability and those records that show the contrary. A VA knee examination was conducted in October 2019. The examiner, however, did not address the specific instability matter as requested. A remand confers on a veteran or other claimant, as a matter of law, the right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the October 2019 examiner found the Veteran had a meniscal (semilunar cartilage) condition without indicating the severity and frequency of symptoms. The examiner’s finding that the Veteran did not have muscle atrophy also appears to be inconsistent with a June 2020 treatment report noting left knee weakness likely due to quadriceps atrophy from disuse. It is also significant to note that a September 2009 VA examination revealed slight left knee instability and that a June 2011 VA treatment report noted testing revealed left knee laxity. In testimony provided in May 2016, the Veteran complained of instability and locking in the left knee. In a September 2020 statement the Veteran complained of problems he had with the October 2019 examiner, reported that his left leg locking was more frequent, and stated that he had decided to seek the opinion of a private physician. The Board further notes that, effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). Those revisions include significant changes to the criteria pertinent to certain knee disabilities. VA, thus, must consider the claim for a higher rating pursuant to the former and revised regulations after February 7, 2021. See VAOPGCPREC 32000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). The matters are REMANDED for the following action: Schedule the Veteran for an examination of the current severity of his left knee disabilities. The examiner should determine whether there is instability or recurrent subluxation of the left knee; and if so, this determination should be expressed in terms of slight, moderate, or severe due to either the lateral instability or recurrent subluxation. The examiner must address and reconcile inconsistencies between the Veteran’s assertions throughout the appeal period that he has knee instability and those records that show the contrary. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. She or he must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. With regard to flare-ups, the examiner is asked to describe whether pain significantly limits functional ability during flares, and if so, the examiner must estimate range of motion during flares. If the examination does not take place during a period of flare-up, the examiner should glean information regarding the flares’ severity, frequency, duration, and functional loss manifestations from the Veteran, medical records, and other available sources. Efforts to obtain such information must be documented. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate 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). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Douglas 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.