Citation Nr: 21021684 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 07-31 296A DATE: April 13, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for residuals, status post debridement of a lateral meniscus tear of the left knee (left knee disability) (excluding periods when temporary 100 percent ratings were in effect) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1996 to September 1998. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from an October 2006 rating decision. In March 2011 and March 2015, the Board remanded this matter for further development. In a July 2017 decision, the Board denied the Veteran’s increased rating claim for a left knee disability. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2018 Order, the Court granted a Joint Motion for Partial Remand (JMPR), vacated the Board’s July 2017 decision, in part, and remanded the issue of entitlement to an increased rating for the service-connected left knee disability back to the Board. The Board then remanded the claim in July 2018 and June 2020 for further development. In December 2020, the agency of original jurisdiction (AOJ) awarded temporary 100 percent ratings for the service-connected left knee disability due to surgical or other treatment requiring convalescence, from March 16, 2018 through April 30, 2018, and from July 17, 2020 through August 31, 2020. The AOJ resumed a 10 percent rating, from May 1, 2018 through July 16, 2020 and from September 1, 2020. As the Veteran was granted 100 percent ratings from March 16, 2018 through April 30, 2018, and from July 17, 2020 through August 31, 2020, for his service-connected left knee disability, the ratings for this disability during these periods will not be addressed by the Board. Cf. AB v. Brown, 6 Vet. App. 35, 38 (1993). Entitlement to a disability rating in excess of 10 percent for residuals, status post debridement of a lateral meniscus tear of the left knee (left knee disability) (excluding periods when temporary 100 percent ratings were in effect) is remanded. The Board finds that additional development is required for the issue on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim. During the pendency of the appeal, the schedular criteria for rating the knee have been amended, effective February 7, 2021. In these regulatory changes, Diagnostic Code 5257 differentiates between recurrent subluxation or instability and patellar instability. See 85 Fed. Reg. 76,453 – 76,463 (November 30, 2020). Additionally, the way recurrent subluxation or instability and patellar instability are rated differs significantly from how subluxation or lateral instability was rated under the old criteria. A review of the record shows that while the most recent VA knee examination in December 2020 did not show recurrent subluxation or lateral instability, the Veteran’s post-service treatment records show consistent reports of the Veteran’s left knee instability and “giving way.” As such, a new VA examination is warranted. Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the Indianapolis Vista electronic records system and are dated to September 2020. Any VA treatment records are within VA’s constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. The matter is REMANDED for the following action: 1. Obtain the Veteran’s outstanding VA treatment records from the Indianapolis Vista electronic records system for the period since September 2020; and all such relevant records from any other sufficiently identified VA facility. 2. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a VA examination to determine the severity of his service-connected left knee disability. Provide the claims file, including a copy of this REMAND, to the examiner for review. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing of both the left and right knee. It is imperative that the examiner comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of the Veteran’s left knee symptoms, and the effect of pain on range of motion. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his left knee symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner finds that there is left knee subluxation or instability, the s/he must address the following: (a) Whether there is recurrent subluxation or instability that is due to a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) and a medical provider prescribed the use of a brace and/or assistive device (i.e., cane, crutches, walker) and/or bracing for ambulation. (b) Whether there is patellar instability that is a diagnosed condition involving the patellofemoral complex with recurrent instability, with or without a history of surgical repair, and a medical provider prescribed the use of a brace, cane, and/or walker. The examiner is advised that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Further, 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). A full and complete explanatory rationale must be provided for any opinion offered. If the examiner is unable to provide an opinion on the impact of flare-ups and repeated use over time on the Veteran’s range of motion, he/she should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. The examiner may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up or following repeated use over time. Brian J. Elwood Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Ko, 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.