Citation Nr: 21020817 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 18-24 533 DATE: April 8, 2021 REMANDED Entitlement to an increased rating in excess of 10 percent for right knee degenerative arthritis is remanded. Entitlement to an increased rating in excess of 10 percent for left knee degenerative arthritis from February 3, 2016 to January 12, 2021, is remanded. Entitlement to an increased rating in excess of 30 percent for left knee degenerative arthritis from January 12, 2021, is remanded. REASONS FOR REMAND The Veteran served on active duty service with the Marine Corps from April 1972 to May 1992. This matter is on appeal from a September 2017 rating decision. In a November 2018 Board decision, the Board denied an increased rating in excess of 10 percent for the left and right knee degenerative arthritis. The Veteran appealed his denial to the Court of Appeals for Veterans Claims (CAVC or the Court). The Court, in January 2020, issued a joint motion for partial remand (JMPR) to vacate and remand the issues back to the Board. The Board remanded this appeal in June 2020 for additional development. During the pendency of the appeal, a January 2021 rating decision increased the evaluation of the Veteran’s left knee degenerative arthritis to 30 percent effective from January 12, 2021. As this increase did not constitute a full grant of the benefit sought for the entire appeal period, the Veteran’s claim for a higher evaluation remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). As such, the Board has recharacterized the issues on appeal as entitlement to an increased rating for left knee degenerative arthritis from February 3, 2016 to January 12, 2021; entitlement to an increased rating in excess of 30 percent for left knee degenerative arthritis from January 12, 2021; and entitlement to an increased rating in excess of 10 percent for right knee degenerative arthritis. The Board finds that remand is warranted for additional development. The Board notes the most recent VA examination afforded to the Veteran was in January 2021. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov.30, 2020). In particular, the rating criteria was changed for Diagnostic Code (DC) 5257 for slight recurrent subluxation or lateral instability. Notably, the DC considers any repair for a tear resulting in instability and whether there is a prescription by a medical provider for an assistive device for ambulation. Although the Veteran’s appealed disabilities are not currently rated under Diagnostic Code 5257, such codes may be applicable when evaluating the current severity of the Veteran’s service-connected disabilities. Review of the record shows the Veteran reported at the May 2017 and September 2017 VA examinations undergoing a surgical procedure to repair a tear in his left knee. The Veteran also reported using a cane and brace for instability in his knees. Review of the VA examinations do not show whether the surgical procedure was successful or whether the used assistive devices were prescribed by a medical provider. As such, the Board finds there is insufficient evidence to rate the Veteran’s disability under the new rating criteria; therefore, the Board finds remand a new examination is warranted. The matters are REMANDED for the following action: 1. Obtain any outstanding private or VA treatment records pertinent to the Veteran’s left and right knee degenerative arthritis. 2. Schedule the Veteran for appropriate VA examination to assess the current severities of the Veteran’s service-connected left and right knee degenerative arthritis. The electronic claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed and all findings should be set forth in detail. Upon examination of the record and the Veteran, the examiner should address the following: (a.) Record in detail the symptoms and manifestations of the Veteran’s left and right knee degenerative arthritis. (b.) The examiner is asked to indicate the point during range-of-motion testing that motion is limited by pain. The examiner should test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing. (c.) If an examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should explain why. (d.) The examiner should describe the extent of any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology and/or is evidenced by visible behavior such as facial expression or wincing. (e.) If the Veteran is not suffering from a flare-up of his right or left knee disability at the time of the examination, the examiner must attempt to ascertain information, such as frequency, duration, characteristics, severity, and functional loss, regarding any flare-ups by alternative means and to estimate the functional impact of flare-ups in terms of range of motion on the basis of that information. The examiner is advised that CAVC held that the examiner cannot refuse to give an opinion, citing speculation, merely because the reported flareups are not directly observed, but can only do so if the “inability to provide an opinion without resorting to speculation ‘reflect[s] the limitation of knowledge in the medical community at large’“ as opposed to insufficient information or unprocured testing. If that is the case here, the examiner should indicate such in the report. (f.) The examiner should express an opinion as to whether pain or other manifestations occurring during flare-ups or with repeated use could significantly limit functional ability of the affected parts. (g.) The examiner should identify the degree of any additional range of motion loss due to pain on use or during flare-ups. If the Veteran reports flare-ups but the examination is not conducted during a flare-up, appropriate information should be solicited from the Veteran in order to attempt to estimate any additional impairment during flare-ups. (h.) The examiner should discuss the Veteran’s reported April 2017 surgical procedure to treat a tear in his left knee and report on whether surgical procedure was successful in repairing the tear and/or resulted in persistent instability. (i.) The examiner should discuss the Veteran’s use of a cane and brace as mentioned in the May 2017, September 2017, and January 2021 examinations and report on whether these devices were prescribed by a medical provider. 3. The examiner is also advised that the Veteran is competent to report in-service events and treatment, and his symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. (a.) If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. (b.) A complete rationale is requested for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 4. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.