Citation Nr: 21021765 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 15-14 190 DATE: April 13, 2021 REMANDED Entitlement to a rating in excess of 10 percent for degenerative joint disease of the right knee (hereinafter, “right knee disability”) on the basis of limitation of motion is remanded. Entitlement to a rating in excess of 10 percent for right knee disability on the basis of instability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1989 to October 2012, to include service in Iraq. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The RO, in pertinent part, granted service connection and a 0 (zero) percent (noncompensable) rating for degenerative joint disease of the right knee, effective November 1, 2012. In a June 2018 decision, the Board granted a combined 20 percent rating for the Veteran’s right knee disability based on 10 percent for painful motion under Diagnostic Code 5003 and 10 percent for instability under Diagnostic Code 5257. See 38 C.F.R. § 4.25. The Veteran appealed the Board’s June 2018 decision to the United States Court of Appeals for Veterans Claims (Court). By an April 2019 order, the Court, pursuant to a Joint Motion for Partial Remand (JMPR), vacated the Board’s decision to the extent that it denied a combined rating in excess of 20 percent for the right knee and remanded the matter for action consistent with the JMPR. In July 2019, the Board remanded the case for further development, to include a new VA examination of the Veteran’s right knee. There has been at least substantial compliance with the Board’s remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). However, for the reasons detailed below, the Board finds that further development is required. 1. Entitlement to a rating in excess of 10 percent for right knee disability on the basis of limitation of motion is remanded. 2. Entitlement to a rating in excess of 10 percent for right knee disability on the basis of instability is remanded. The Board observes that revisions to the criteria for evaluating musculoskeletal system and muscle injuries have been made, effective February 7, 2021. See 85 Fed. Reg. 76453 (November 30, 2020). The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective date of a new regulation if the prior version was in effect during the pendency of the appeal and it is more beneficial to the Veteran to do so. In this case, the Board notes that the February 7, 2021 revisions made significant changes to 38 C.F.R. § 4.71a, Diagnostic Code 5257, pertaining to the criteria for evaluating recurrent subluxation and instability of the knee. Prior to February 7, 2021, slight impairment of either knee, including recurrent subluxation or lateral instability, warranted a 10 percent evaluation under Diagnostic Code 5257. A 20 percent evaluation required moderate impairment, while a 30 percent evaluation required severe impairment. Effective February 7, 2021, Diagnostic Code 5257 provides that recurrent subluxation or instability warrants a 10 percent rating 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. 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 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, with a medical provider prescribing both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. The revised version of Diagnostic Code 5257 also provides separate criteria in cases of patellar instability. These criteria are explicitly applicable to a diagnosed condition involving the patellofemoral complex. Note (1) to the criteria states that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. In pertinent part, the criteria provide that 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 warrants a 10 percent rating. A 20 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 one of the following: a brace, cane, or walker. Finally, 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. Here, it is not clear from the record whether the Veteran is entitled to a rating in excess of 10 percent under the revised version of Diagnostic Code 5257. The Veteran has reported, to include at his most recent VA examination in January 2020, that he used braces on both knees. Treatment records from June and September 2012 note the use of sleeves for the knees; and records from May 2017 note that an immobilizer was used for the left knee. However, it is not clear whether the Veteran has been using a prescribed a brace for the right knee during the period from February 7, 2021. Moreover, the January 2020 VA examination, as well as a prior examination in September 2012, indicate that he has not been using assistive devices for his knees. In light of the foregoing, the Board finds that a new examination is required to clarify the extent of the Veteran’s right knee instability, to include whether he has been prescribed a knee brace or other assistive devices. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). As an examination is otherwise required for the right knee, it should also include current findings regarding the range of motion of that joint. These matters are REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issues on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for an examination of his right knee. The examiner should provide a full description of the Veteran’s associated functional impairments as they relate to the relevant rating criteria. The examination must include testing for pain on both active and passive motion, in weight bearing and non-weight bearing. The examiner must also attempt to elicit information regarding functional loss due to flare-ups and repeated use over time. If the Veteran suffers from such loss, the examiner should express the loss in terms of degrees of additional loss in range of motion (i.e., in addition to that observed clinically), if feasible, taking into account all of the evidence, including the Veteran's competent statements with respect to the frequency, duration, characteristics, and severity of his limitations. Governing law requires that if the Veteran is not exhibiting functional loss due to flare-ups and/or repeated use over time, examiners will nevertheless offer opinions with respect to functional loss based on estimates derived from information procured from relevant sources, including lay statements of the Veteran. An examiner must do all that reasonably should be done to become informed before concluding that an opinion cannot be provided without resorting to speculation. That said, if it is the examiner's conclusion that he or she cannot feasibly provide the requested opinion(s), even considering all of the available evidence, it must be so stated, and the examiner must provide the reasons why offering such opinion(s) is not feasible. The examination should also indicate whether the Veteran has been prescribed a brace, cane, crutches, walker, and/or any other assistive device(s) for his right knee. If so, the examiner should identify the type of devices that have been prescribed, as well as when the prescriptions were issued. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board John Kitlas, 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.