Citation Nr: 21025841 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 11-31 759A DATE: April 29, 2021 REMANDED The claim for a rating in excess of 10 percent for right knee limitation of flexion is remanded. The claim for a rating in excess of 10 percent for right knee subluxation/instability is remanded. The claim for a compensable rating for right knee limitation of extension is remanded. The claim for a 20 percent rating for right knee meniscal impairment from April 4, 2011 is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1972 to August 1992. In a September 2019 decision, the Board, in part, denied ratings in excess of 10 percent for right knee limitation of flexion and subluxation/instability, denied a compensable rating for right knee limitation of extension; and denied a rating in excess of 20 percent for right knee meniscal impairment from April 4, 2011. The Veteran appealed the Board’s September 2019 decision to the United States Court of Appeals for Veterans Claims (“the Court”). In November 2020, the Court issued an order that vacated the Board decision and remanded the claims for compliance with a Joint Motion for Partial Remand (JMPR). In the November 2020 JMPR, the parties agreed that the Board did not consider the ameliorative effects of medication when evaluating the current nature and severity of the Veteran’s right knee disabilities. See JMPR at page (pg.) 3)). VA examiners throughout the appeal have indicated that the Veteran took medication for his right knee disabilities, but they did not consider the ameliorative effects of medication when evaluating the current nature and severity of those disabilities. See Jones v. Shinseki, 26 Vet. App. 56 (2012) (when a Diagnostic Code is silent as to the effects of medication, VA may not deny entitlement to a higher disability rating based on the relief provided by medication). This must be accomplished on remand. A remand is also required in order to ensure compliance with the Board’s March 2016 remand directives. In its March 2016 remand directives, the Board ordered a new examination of the knees, and instructed that the VA examiner perform testing on “both the joint in question and the paired joint.” Here, the most recent VA examination of the knees, conducted in May 2017, reflects that joint testing was only performed on the right knee. As argued by the Veteran’s attorney, testing on the left knee could have revealed no evidence of any instability and, thus, the instability that was found was entirely related to the right knee. Therefore, the Board finds that the May 2017 VA examiner did not substantially comply with the Board’s remand instructions, and the matters must be remanded in order to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). Finally, the Board notes that, effective February 7, 2021, VA amended the criteria for rating musculoskeletal system and muscle injuries disabilities. See 83 Federal Register 76453 (November 30, 2020). VA published in the Federal Register the proposed rule for Schedule for Rating Disabilities: musculoskeletal system and muscle injuries on November 30, 2020. The revised changes effected criteria for instability of the knee under Diagnostic Code 5257. This too requires updated medical information. The matters are REMANDED for the following action: 1. Obtain VA treatment records from November 2019 to the present. 2. Schedule the Veteran for a VA orthopedic examination to evaluate the severity of his service-connected right knee disabilities. The examiner should: A) Test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing (if applicable), for both the joint in question and the paired joint. If the examiner is unable to conduct the required testing, or concludes required testing is not necessary, he or she should clearly explain why that is so. B) Describe all of the symptomatology associated with the right knee disability, to include all functional limitations present (a) after repetition over time and, separately, (b) during flare-ups should be reported. If for any reason the examiner is unable to conduct the required testing, he or she should clearly explain why that is so. C) Describe to the extent possible the Veteran’s range of motion in his right knee, without the benefit of any ameliorative impacts of his medication. If such cannot be done, it should be explained why. D) Describe the size and shape of any right knee scar(s), to include whether there is underlying soft tissue damage or whether the scar is unstable, painful, or causes any limitation of function or other indirect sequelae of the right knee. If the examiner determines that the scar(s) found on examination result(s) in limitation of function of the right knee, please discuss the degree of limitation of function/motion. E) Determine whether the Veteran has a diagnosed condition involving the patellofemoral complex (the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon) with recurrent instability, and note whether he has a prescription from a medical provider for a brace, cane, or walker. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Carole Kammel, 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.