Citation Nr: 21025545 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 14-10 748A DATE: April 28, 2021 REMANDED Entitlement to an initial compensable rating for left knee limitation of extension is remanded. Entitlement to an increased initial rating for left knee limitation of flexion, currently rated as 10 percent disabling, is remanded. Entitlement to an increased initial rating for left knee instability, currently rated as 10 percent disabling, is remanded. Entitlement to an increased rating for right knee patellar subluxation, initially rated as 30 percent disabling, and reduced to 20 percent disabling since July 1, 2014, to include consideration of whether it was appropriate to reduce the rating, is remanded. Entitlement to an initial compensable rating for right knee limitation of extension is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1973 to October 1977. The Veteran testified at an April 2018 Board hearing before the undersigned, and a transcript of the hearing is of record. In June 2018, the Board remanded these matters to provide the Veteran with an updated VA examination of the left and right knees. In October 2019, the Board again remanded these matters to give the Veteran another opportunity to attend a VA knee examination, which he had declined to attend after the prior remand. Updated VA examinations were provided in December 2019 and January 2021. Although the Board regrets additional delay, remand is again necessary in order to fully satisfy the duty to assist the Veteran. 1. Entitlement to an initial compensable rating for left knee limitation of extension is remanded. 2. Entitlement to an increased initial rating for left knee limitation of flexion, currently rated as 10 percent disabling is remanded. 3. Entitlement to an increased initial rating for left knee instability, currently rated as 10 percent disabling is remanded. 4. Entitlement to an increased rating for right knee patellar subluxation, initially rated as 30 percent disabling, and reduced to 20 percent disabling since July 1, 2014, to include consideration of whether it was appropriate to reduce the rating is remanded. 5. Entitlement to an initial compensable rating for right knee limitation of extension is remanded. Prior to the October 2019 remand, the Veteran’s right knee patellar subluxation was rated as 30 percent disabling prior to July 1, 2014, and was reduced to 20 percent disabling since July 1, 2014, under Diagnostic Code 5257. The Veteran’s left knee limitation of flexion was rated as 10 percent disabling under Diagnostic Code 5003-5260. As a result of VA examinations conducted after the October 2019 remand, the Veteran was assigned a 10 rating for left knee instability under Diagnostic Code 5257. The Veteran was also assigned noncompensable (zero percent) ratings each for left and right knee limitation of extension. The Veteran contends that the severity of his service-connected left and right knee symptoms warrants ratings in excess of those assigned. The Board notes that, effective February 7, 2021, a new rating formula for knee subluxation and instability applies to Diagnostic Code 5257. See 85 Fed. Reg. 76453 (Nov. 30, 2020). These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and the more veteran-favorable criteria 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 date of the new regulation if the prior version was in effect during the pendency of the appeal. Further development is required to determine whether the Veteran meets the criteria for a higher rating from February 7, 2021 under the revised version of Diagnostic Code 5257. As new range of motion measurements of the knee will be taken at the examination upon remand, it would be premature for the Board to adjudicate the Veteran’s claims for increased ratings for limitation of flexion and extension of the knees. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left and right knee disabilities. 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. 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 also 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). In determining the appropriate rating, the Agency of Original Jurisdiction must the consider the new, revised Diagnostic Code 5257. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Casey, 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.