Citation Nr: 21024100 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-48 261 DATE: April 22, 2021 ORDER Service connection for a left foot disability is denied. Service connection for bilateral foot disability, to include bilateral plantar fasciitis, is denied. Service connection for sleep apnea is denied. Entitlement to a compensable rating for service-connected sexual dysfunction is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for service-connected right ankle strain is remanded. Entitlement to a disability rating in excess of 10 percent for service-connected left ankle strain is remanded. Entitlement to a disability rating in excess of 10 percent for service-connected right knee patellofemoral pain syndrome (PFPS) with osteoarthritis (lateral instability) is remanded. Entitlement to a disability rating in excess of 10 percent for service-connected left knee PFPS with osteoarthritis is remanded. FINDINGS OF FACT 1. A left foot disability (status postoperative repair of lacerations on the dorsum of the left foot and the flexor digitorum longus, posterior tibialis, and anterior tibialis tendons) was noted on July 1981 pre-induction examination; the left foot disability did not permanently increase in severity during service. 2. The preponderance of the evidence is against finding that bilateral plantar fasciitis began during active service, or is otherwise related to an in-service injury or disease. 3. The Veteran’s sleep apnea is not secondary to service-connected depressive disorder with anxiety disorder and primary insomnia, and is not otherwise related to an in-service injury or disease. 4. The Veteran’s service-connected sexual dysfunction is productive of loss of erectile power, but not deformity of the penis. CONCLUSIONS OF LAW 1. The criteria for service connection for a left foot disability (residuals of postoperative repair of lacerations on the dorsum of the left foot and the flexor digitorum longus, posterior tibialis, and anterior tibialis tendons) are not met. 38 U.S.C. §§ 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. 2. The criteria for service connection for a bilateral foot disability are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for a compensable evaluation for sexual dysfunction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.115B, Diagnostic Codes 7599-7522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active air service from December 1981 to December 1985. This case comes to the Board of Veterans’ Appeals (Board) on appeal from multiple rating decisions of the Agency of Original Jurisdiction (AOJ). In a December 2019 decision, the Board denied entitlement to higher ratings for service-connected depressive disorder and anxiety disorder, left ankle strain, right ankle strain, right knee PFPS with osteoarthritis, right knee PFPS with osteoarthritis (lateral instability), and bilateral hearing loss, and denied entitlement to a higher level of special monthly compensation (SMC) based on loss of use of a creative organ. The Veteran then appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2020 Joint Motion for Partial Remand (Joint Motion) to the Court, the parties (the Veteran and the Secretary of VA) requested that the Board decision be vacated only as to the issues of entitlement to a rating in excess of 10 percent for left ankle strain, a rating in excess of 10 percent for right ankle strain, and a rating in excess of 10 percent for right knee PFPS with osteoarthritis (lateral instability), and these issues remanded. In a September 2020 order, the Court granted the Joint Motion and remanded these three claims for action consistent with the terms of the Joint Motion. The appeal as to the remaining issues was dismissed, including the issue of entitlement to a higher rating for right knee PFPS with osteoarthritis (limitation of motion). In its December 2019 decision, the Board remanded the following issues to the AOJ for additional development: service connection for a right wrist disability/carpal tunnel syndrome (CTS), sleep apnea, a bilateral foot disability (plantar fasciitis), and a left foot disability, and entitlement to higher ratings for sexual dysfunction and left knee PFPS with osteoarthritis. In an August 2020 rating decision, the AOJ granted service connection for a right wrist disability/CTS, and this issue is no longer in appellate status. The case was subsequently returned to the Board. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection for a left foot disability The Veteran contends that his preexisting left foot disability was aggravated by service. See his January 2016 claim, October 2016 notice of disagreement, and the February 2021 written brief by his representative. The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff’d 749 F.3d 1370 (Fed. Cir. 2014). In this case, there is a question as to whether the Veteran’s left foot disability preexisted his period of active duty military service from December 1981 to December 1985. In May 1981, prior to service, the Veteran reported that his foot was caught in a motorcycle chain in 1973. By a letter dated in May 1981, the Veteran's former private physician, Dr. B., indicated that the Veteran was treated in June 1973 for severe lacerations on the dorsum of his left foot, and underwent surgical repair of the flexor digitorum longus, posterior tibialis, and anterior tibialis tendons. He stated that when he last saw the Veteran in December 1973, he had active dorsiflexion of the left foot, but the anterior tibial tendon and muscle were still rather weak. In Wagner v. Principi, 370 F.3d 1089, 1096 (2004), the United States Court of Appeals for the Federal Circuit held if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case, 38 U.S.C. § 1153 applies and the burden falls on the veteran to establish an increase in disability during service. If the presumption of aggravation attaches, the burden shifts to the government to show by clear and unmistakable evidence that there has been no increase in the severity of the preexisting condition or that any increase was the result of natural progression. Id; see also 38 C.F.R. § 3.306(b). After a review of the evidence of record, the Board finds that the evidence does not show an increase in the severity of the noted preexisting left foot disability during service. The Veteran’s July 1981 entrance examination reveals a notation of a scar on the left medial ankle. He was referred for an orthopedic consult and an X-ray study of the left foot. A July 1981 X-ray study of the left foot reflects that he was referred because he had rather extensive surgery for tendon repair, and had scarring and some flexion limitations. The X-ray study showed that the bone and joint structures were normal, and there was metallic suture material in relation to the scaphoid. A July 1981 orthopedic consult reflects that an examination of the left foot showed an incision on the medial aspect of the left foot, with good range of motion but he lacked 5 to 10 degrees on inversion. The doctor noted that an X-ray study showed metal sutures on the dorsum of the foot. The diagnosis was post-operative left foot with good results. Subsequent service treatment records are negative for complaints or treatment of a left foot condition (other than tinea pedis) until August 1985. Service treatment records reflect treatment for a left ankle contusion in May 1985; an X-ray study showed old sutures and no acute changes. In August 1985 the Veteran was treated for a left ankle sprain after sliding into a base while playing softball. An August 1985 X-ray study showed that the study was performed after trauma to the left ankle/top of left foot. The X-ray study showed mild soft tissue swelling, and post-surgical repair of ligamental structures. There were no bony abnormalities. A separation examination was not performed as the Veteran declined an examination. On VA foot and ankle examinations in May 2016, the examiner noted that the Veteran had prior foot surgery in the 1970s, namely a repair of a laceration injury of the dorsum of the left foot, and indicated that there were no residual signs or symptoms, other than a scar on the dorsum of the foot. The examiner diagnosed bilateral pes planus, bilateral plantar fasciitis, and bilateral ankle strain. The examiner opined that the claimed “left foot/ankle condition” is at least as likely as not incurred in or caused by service, noting treatment for left ankle pain and injury in May and August 1985. Service connection was subsequently granted for a left ankle disability. On VA foot examination in July 2016, the examiner diagnosed preexisting left foot conditions of tibialis anterior, tibialis posterior, and flexor digitorum longus laceration, and opined that the condition were not caused by or a result of illness, injury or event in service. The rationale was that the Veteran's service treatment records are silent for diagnosis of or treatment for any injury, illness, or event that would be expected to aggravate the pre-existing foot laceration beyond its normal, natural progression. The examiner indicated that there were no residual signs or symptoms of the 1973 surgery, other than a scar on the dorsum of the left foot. In July 2017, the Veteran’s private chiropractor, P.Y., D.C., diagnosed bilateral plantar fasciitis, and made no mention of the Veteran's preexisting left foot disability. A VA foot examination was performed in February 2020, and the examiner opined that the Veteran's left foot condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The rationale was that based on the history of the present illness and the current examination, the Veteran’s left foot condition was clearly and unmistakably (evidence that is undebatable and cannot be misunderstood or misinterpreted) not permanently worsened in severity by his active period of service. The examiner also opined that it is not at least as likely (a 50 percent or greater probability) that the Veteran’s current left foot disorder had its onset during, was caused by, or is otherwise related to active service. A nexus has not been established. As the most competent and credible evidence of record does not show an increase in the severity of the left foot disability during service the presumption of aggravation does not attach. As such, a discussion of clear and unmistakable evidence to rebut the presumption of aggravation is not required. Wagner, 370 F.3d at 1096. Because the Veteran’s pre-existing left foot disability was not aggravated by military service, entitlement to service connection must be denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Service connection for a bilateral foot disability, including plantar fasciitis The Veteran contends that his bilateral foot disability began in service, and his symptoms of foot and ankle pain began in service and continued afterward. He said he was injured in service on a number of occasions and was treated conservatively. See May 2016 VA examination. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of bilateral plantar fasciitis, and evidence shows that during service he was treated for tinea pedis and skin infections of the feet, and bilateral ankle injuries, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of bilateral plantar fasciitis began during service or is otherwise related to an in-service injury, event, or disease. VA and private treatment records show the Veteran was not diagnosed with bilateral plantar fasciitis until May 2016, decades after his separation from service. While the Veteran is competent to report having experienced symptoms of bilateral foot pain consistently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of bilateral plantar fasciitis. The issue is medically complex, as it requires interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The record contains conflicting medical opinions regarding whether the Veteran’s bilateral plantar fasciitis is at least as likely as not related to an in-service injury, event, or disease, including left and right ankle injuries. The July 2016 and February 2020 VA examiners opined that it is not. The July 2016 VA examiner opined that the Veteran’s bilateral plantar fasciitis was not due to or a result of illness, injury, or event in service. The rationale was that service treatment records are silent for diagnosis of or treatment for plantar fasciitis in either foot, and post-service treatment records do not show diagnosis or treatment of the condition shortly after separation from service. The examiner indicated that reduced ankle dorsiflexion, obesity, and work-related weight-bearing appear to be independent risk factors for plantar fasciitis, citing Risk factors for Plantar fasciitis: a matched case-control study. Riddle DL, Pulisic M, Pidcoe P, Johnson RE, J Bone Joint Surg Am. 2003 May; 85-A (5): 872-7. The examiner also noted that the Veteran’s current BMI is 34.05 (morbid obesity), and opined that his current plantar fasciitis is a stand-alone entity, neither due to nor aggravated by active military service or service-connected disabilities. The VA examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In July 2017, the Veteran’s private chiropractor, P.Y., D.C., opined that bilateral plantar fasciitis is related to service. He incorrectly stated that the Veteran was seen for this condition on multiple occasions in service, and opined that the Veteran’s documented foot pain in service persisted to the present. This opinion is, however, less probative than the VA examiner’s opinion. There is no indication that P.Y. reviewed pertinent medical evidence in the claims file. Instead, the opinion appears to be based on inaccurate information, which is inconsistent with the service treatment records which do not show treatment for bilateral plantar fasciitis in service. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Although the May 2016 VA examiner opined that the claimed “left foot/ankle condition” and “right foot/ankle condition” are at least as likely as not incurred in or caused by service, noting treatment for bilateral ankle injuries in service, the Board finds that this opinion is less probative than those of the July 2016 and February 2020 VA examiners because the examiner appears to be conflating the feet and ankles, and did not specifically opine that bilateral plantar fasciitis was related to service. Service connection has already been granted for right and left ankle disabilities. Additionally, although the May 2016 VA examiner diagnosed pes planus, VA examiners in July 2016 and February 2020 did not diagnose pes planus, and indicated that the Veteran did not have decreased longitudinal arch height of one or both feet on weight-bearing. On VA examination in February 2020, the Veteran reported that he has been suffering from bilateral foot pain since service, but denied any specific foot injury. He said he sustained the injuries over time during service. The examiner opined that bilateral plantar fasciitis is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that no evidence was found in the medical record to indicate that the Veteran suffered from a bilateral foot condition (plantar fasciitis) during service, and that a nexus has not been established. The examiner also opined that the Veteran's bilateral plantar fasciitis is less likely than not proximately due to or the result of service-connected disabilities. Taken together, the July 2016 and February 2020 VA opinions of record establish that the Veteran’s bilateral plantar fasciitis is not at least as likely as not related to an in-service injury, event, or disease, including bilateral ankle injuries. The examiners’ combined opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his bilateral plantar fasciitis is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the July 2016 and February 2020 VA examinations. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz, supra; Gilbert, supra. Service connection for sleep apnea The Veteran contends that sleep apnea was caused by his service-connected psychiatric disorder (depressive disorder with anxiety disorder and primary insomnia). See his June 2018 substantive appeal. The Board previously remanded this claim for a medical opinion as to whether sleep apnea is related to service or is secondary to the service-connected psychiatric disorder. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The question for the Board is whether the Veteran has a current disability that is related to service or is proximately due to or the result of, or was aggravated beyond its natural progress by service-connected disability. The Board concludes that, while the Veteran has a current disability of obstructive sleep apnea (OSA), the preponderance of the evidence is against finding that the Veteran’s OSA is related to service or is proximately due to or the result of, or aggravated beyond its natural progression by service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). Service treatment records are negative for complaints or treatment of sleep apnea. VA and private treatment records show the Veteran was not seen for complaints of sleep-disordered breathing until July 2016, or diagnosed with sleep apnea by sleep study until September 2016, decades after his separation from service. The February 2020 VA examiner opined that the Veteran’s sleep apnea was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that no evidence was found in the medical record to indicate that the Veteran suffered from a sleep apnea during service, and a nexus has not been established. The examiner also opined that sleep apnea is less likely than not (less than 50 percent probability) proximately due to or the result of Veteran’s service-connected condition. The rationale was that no evidence was found in the medical record or on today’s examination to indicate that the Veteran’s sleep apnea is related to any of the Veteran’s service-connected conditions. The examiner opined that the Veteran's sleep apnea was not at least as likely as not aggravated beyond its natural progression by service-connected condition. The rationale was that based on a review of the medical record, history of present illness, and the current examination, no evidence was found to indicate that the Veteran’s sleep apnea was aggravated beyond its natural progression by any of the Veteran’s service connected conditions, or permanently worsened (aggravated) as a result of the Veterans service-connected conditions. The Veteran's private chiropractor, P.Y., D.C., opined that the Veteran's sleep apnea is as likely as not directly and causally related to chronic obstructive pulmonary disease (COPD)/bronchial asthma, and elements of PTSD cannot be excluded in causation. He concluded that it is accordingly as likely as not that same is directly and causally related to his military service. The Board finds that this private medical opinion has limited probative value. The Veteran's service-connected disabilities do not include COPD, asthma, or PTSD, and thus secondary service connection is not warranted on this basis. With regard to direct service connection, P.Y. did not opine that the Veteran's sleep apnea symptoms began in service, and the opinion appears to be based solely on the Veteran's reported history, which is inconsistent with the service treatment records which do not show complaints or treatment for sleep apnea in service. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). The Veteran believes his sleep apnea is proximately due to or the result of, or aggravated beyond its natural progression by service-connected depressive disorder with anxiety disorder and primary insomnia. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body, anatomical relationships, and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the February 2020 VA examination. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz, supra; Gilbert, supra. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Hyphenated codes are intended to show that the Veteran’s service-connected disability is rated by analogy. See 38 C.F.R. § 4.20 (an unlisted condition may be rated under a closely related disease or injury in which the functions affected, anatomical localization, and symptomatology are closely analogous). Higher rating for sexual dysfunction The Veteran contends that a 20 percent rating should be assigned for his service-connected sexual dysfunction. See his November 2017 notice of disagreement. The Veteran’s service-connected sexual dysfunction has been evaluated as noncompensable and rated by analogy under 38 C.F.R. § 4.115B, Diagnostic Codes 7599-7522 for penis, deformity, with loss of erectile power. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. See 38 C.F.R. § 4.31. Under Diagnostic Code 7522, for the Veteran to receive a higher 20 percent rating for erectile dysfunction, a physical deformity of the penis with loss of erectile power is required. 38 C.F.R. § 4.115B. A footnote to Diagnostic Code 7522 also indicates the disability is to be reviewed for entitlement to special monthly compensation (SMC) for loss of use of a creative organ under 38 C.F.R. § 3.350 (a). In this case, the Veteran is already in receipt of SMC for loss of use of a creative organ, and his prior appeal for a higher level of SMC is no longer in appellate status. Upon review of the evidence, the Veteran does not meet the criteria for a 20 percent rating under Diagnostic Codes 7599-7522. In February 2020, the Veteran underwent a VA examination of the male reproductive organs. The VA examiner indicated that the Veteran had erectile dysfunction (ED). The examiner did not examine the Veteran's penis or testicles because the Veteran declined such examination. The Veteran reported that he had normal anatomy with no penile or testicular deformity or abnormality. In this case, the Veteran’s loss of erectile power is documented, and is accepted as factual. However, the evidence of record does not reveal any physical deformity of the penis. The requirement under Diagnostic Code 7522 of deformity of the penis ‘with’ loss of erectile power means that both factors are required for a compensable evaluation. The Veteran’s VA and private treatment records do not document that the Veteran has any penile deformity. Furthermore, the Veteran has not asserted that he has any penile deformity. For the foregoing reasons, the preponderance of the evidence is against the claim for a compensable evaluation for the Veteran’s sexual dysfunction, and the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND Higher rating for right ankle strain is remanded. Higher rating for left ankle strain is remanded. In the August 2020 Joint Motion, the parties agreed that the Board’s failure to discuss the adequacy of the VA examination reports in this case as they relate to the degree of limitation of the ankles during flare-ups, and the rationale for the VA examiners’ stated inability to provide opinions without report to speculation, rendered its statement of reasons or bases inadequate, citing Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). While the record contains VA examinations regarding the Veteran’s right ankle strain and left ankle strain, the examinations do not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). While the examiners stated that an opinion could not be provided without resort to speculation, the examiners did not indicate that the speculation was due to lack of knowledge within the medical community. Evidence indicates that there may be outstanding relevant VA treatment records. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal. Higher rating for right knee PFPS with osteoarthritis (lateral instability) Higher rating for left knee PFPS with osteoarthritis The Board notes that the only right knee issue currently in appellate status is entitlement to a rating higher than 10 percent for service-connected patellofemoral pain syndrome (PFPS) of the right knee with osteoarthritis (lateral instability). The AOJ has rated this disability under Diagnostic Code 5257, pertaining to other impairment of the knee with recurrent subluxation or lateral instability. 38 C.F.R. § 4.71A, Diagnostic Code 5257 (2020). Throughout the rating period on appeal, the AOJ has rated left knee PFPS with osteoarthritis as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5261, pertaining to traumatic arthritis and limitation of extension of the leg, respectively. With regard to right knee instability, in the August 2020 Joint Motion, the parties agreed that the Board erred by failing to discuss the Veteran’s statements to the May 2016 and October 2017 VA examiners that his knee would sometimes give out. The parties cited English v. Wilkie, in which the Court held that “nothing in DC 5257 provides that objective medical evidence is required or is to be favored over lay evidence.” English v. Wilkie, 30 Vet. App. 347, 352 (2018). The parties also stated that the Board failed to adequately explain the reasons or bases for its assessment of the probative value of the July 2017 private examination report by Dr. Y., the Veteran's treating chiropractor, who noted that the Veteran's knee would sometimes give out and cause him to fall. 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. 76453 (Nov. 30, 2020). Diagnostic Code 5257 now provides ratings based on patellar instability in addition to recurrent subluxation or instability, and the criteria for evaluating the latter have also changed. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). Under the revised criteria of Diagnostic Code 5257, for recurrent subluxation or instability, a 30 percent rating is assigned for with unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating is assigned 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 10 percent rating is assigned 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. Under the revised criteria of Diagnostic Code 5257, for patellar instability, a 30 percent rating is assigned 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. A 20 percent rating is assigned 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. A 10 percent rating is assigned for 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. Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2): 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). 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). Although the October 2017 and February 2020 VA examiners indicated that there was no history of recurrent subluxation or lateral instability of the knees, the May 2016 VA examination noted that the Veteran had a history of slight recurrent subluxation, and the Veteran has told examiners that his knees buckle or give way when walking. See May 2016 and October 2017 VA examinations, and VA outpatient treatment records dated in July and August 2016. Service treatment records dated in June and September 1982 reflect diagnoses of probable hypermobile left patella with subluxation, and chronic mild degenerative changes in both menisci (bilateral). In July 2017, a private chiropractor, P.Y., D.C., indicated that there was lateral instability in both knees. VA outpatient treatment records reflect that the Veteran had an abnormal gait and was given a cane and bilateral knee braces in July 2016, and an August 2016 rheumatology consult shows that the rheumatologist opined that the Veteran likely had a meniscal and possibly also tendon injury of the right knee, and a meniscal issue of the left knee. Because the record does not contain sufficient evidence to rate the Veteran’s right and left knee disabilities under the new rating criteria of Diagnostic Code 5257, a new VA examination of both knees is warranted. Evidence indicates that there may be outstanding relevant VA treatment records. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal. The matters are REMANDED for the following action: 1. With any necessary releases, obtain updated relevant VA and private medical records of treatment or evaluation of bilateral knee and ankle disabilities. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right ankle strain and left ankle strain. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disabilities 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. If it is not possible to provide a specific measurement 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). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement 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). 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right knee patellofemoral pain syndrome with osteoarthritis and lateral instability, and left knee patellofemoral pain syndrome with osteoarthritis. The examiner should provide a full description of the bilateral knee disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria, including the revised rating criteria of Diagnostic Code 5257, which now provide ratings based on patellar instability in addition to recurrent subluxation or lateral instability. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). The examiner should review the claims file, including service treatment records dated in June and September 1982 that reflect diagnoses of probable hypermobile left patella with subluxation and chronic mild degenerative changes in both menisci (bilateral), an August 2016 VA rheumatology consult, March 2017 magnetic resonance imaging (MRI) studies of the knees, and the Veteran's lay statements to medical providers that his knees sometimes give out when walking. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement 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). The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement 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). CHRISTOPHER J. O’DONNELL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. L. Wasser, 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.