Citation Nr: 21025415 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 12-35 211 DATE: April 28, 2021 REMANDED Entitlement to a separate rating in excess of 10 percent under Diagnostic Code (DC) 5257 for right knee instability is remanded. REASONS FOR REMAND The Veteran served in the U.S. Army from March 1993 to April 2002. In January 2019, the Board, in pertinent part, denied a separate rating for right knee instability under DC 5257. The Veteran subsequently appealed to the United States Court of Appeals for Veterans’ Claims (Court). In September 2019, the Court granted the Parties’ Joint Motion for Remand (JMR), vacating the January 2019 Board decision as to the denial of a separate rating for right knee instability and remanded the appeal to the Board. In January 2020, the Board granted a separate 10 percent rating for right knee instability since June 10, 2008. The Veteran subsequently appealed to the Court. In November 2020, the Court granted the Parties’ Joint Motion for Partial Remand (JMPR), vacating the January 2020 Board decision as to the denial of entitlement to a rating in excess of 10 percent for right knee instability since June 10, 2008. A remand is necessary for another VA examination (VAX) as the rating criteria for the knee were revised, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). The most recent VAX, dated December 2020, does not address these regulatory changes for instability under DC 5257. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VAX to determine the severity of his right knee disability. The claims file and a copy of this remand must be made available to and reviewed by the examiner. All indicated tests should be performed and all findings should be reported in detail. 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). The examiner must address whether the Veteran has: a) an unrepaired or failed repair of complete ligament tear causing persistent instability, b) a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability; c) a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair; or d) a diagnosed condition involving the patellofemoral complex with recurrent instability without surgical repair. The examiner should also address whether the Veteran is prescribed a brace and/or an assistive device (e.g. cane(s), crutch(es), walker). Ryan Frank Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Smith, 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.