Citation Nr: 21021986 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 12-16 865 DATE: April 14, 2021 REMANDED Entitlement to an initial disability rating in excess of 10 percent for left knee patellofemoral pain syndrome is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from May 1988 to December 1991. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from July 2010 and September 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In August 2012, the Veteran and his spouse testified at a Board video-conference hearing before the undersigned Acting Veterans Law Judge. A transcript of that hearing has been associated with the record. In July 2016, the Board denied entitlement to a disability rating in excess of 10 percent for left knee patellofemoral syndrome. The Veteran appealed to the United States Court of Appeals for Veterans Claims.  In November 2017, the United States Court of Appeals for Veterans Claims granted a Joint Motion for Remand and vacated the July 2016 decision of the Board to the extent that it denied entitlement to a disability rating in excess of 10 percent for left knee patellofemoral syndrome, and remanded that issue to the Board for additional action. In March 2018, April 2020, and December 2020, the Board remanded these claims to the Agency of Original Jurisdiction for additional action. Entitlement to an initial disability rating in excess of 10 percent for left knee patellofemoral pain syndrome is remanded. In his most recent correspondence with VA, the Veteran, through his representative, stated that VA recently changed the criteria for rating musculoskeletal conditions and as a result, thereof, the Board should remand the issue again for consideration by the RO of the new criteria in the first instance. The Board notes that, during the course of this appeal, the criteria for rating knee disabilities changed effective February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. 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 dates of the new regulation if the prior version was in effect during the pendency of the appeal. Although it is unclear whether any of the changes in this case would impact the Veteran’s rating for his left knee, the Board agrees that a new comprehensive VA examination of the left knee is warranted in light of the regulatory changes, as well as the fact that the existing May 2020 VA opinion leaves some ambiguity as to the effect of flare-ups on the Veteran’s left knee flexion. Specifically, the May 2020 VA examiner stated that the Veteran reported flares of the left knee. Range of motion (ROM) is normal on initial evaluation. No further loss was noted unobserved motion times three. During flares, a loss of ROM. “Based on the Veterans history findings at examination, a reasonable estimate of loss would be 10-degree flexion.” It is unclear to the Board whether the examiner found the Veterans flexion to be 0 to10 degrees in flexion during a flare up or if the Veteran loses 10 degrees of flexion during his flare up, which in this case could be read as resulting in 80 degrees in flexion based on initial ROM testing during the most recent April 2019 VA examination. Thus, remand is required for a new full knee examination so that the Board may properly rate the Veteran’s left knee patellofemoral pain syndrome under the applicable diagnostic code(s). The matter is REMANDED for the following actions: 1. Obtain all pertinent VA medical records relevant to the left knee, not yet associated with the claims file, and associate them with the claims file. 2. Schedule the Veteran for a VA examination of the left knee to determine the nature and severity of the service- connected left knee patellofemoral pain syndrome. Any studies or tests deemed necessary should be performed. In conducting this examination, the examiner should address symptoms found in the diagnostic code rating criteria, including the criteria both prior to the February 7, 2021 changes and after. The examination must include testing for pain on both active and passive motion, in weight bearing and non-weight bearing, and, if possible, with the range of the opposite undamaged joint. The examiner must 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. Then, review the evidence associated with the record since issuance of the January 2021 SSOC for the Veteran's claim for a higher rating for his left knee disability. After a review of the additional evidence, conduct any other development deemed necessary and readjudicate the Veteran's claims for higher ratings for a left knee disability. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board, if properly appealed. Kristine M. Gielow Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mondesir, Eric 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.