Citation Nr: 21025903 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 15-10 868 DATE: April 29, 2021 REMANDED Entitlement to increases in the disability ratings assigned for right knee chondromalacia (currently rated 10 percent prior to December 17, 2020, and 30 percent thereafter) is remanded. Entitlement to increases in the disability ratings assigned for left knee chondromalacia (currently rated 10 percent prior to December 17, 2020, and 30 percent thereafter) is remanded. Entitlement to an initial disability rating in excess of 10 percent for left knee limitation of extension is remanded. Entitlement to an initial compensable disability rating for right knee limitation of extension is remanded. Entitlement to an initial compensable disability rating for right knee instability is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1971 to June 1975. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This claim was remanded for further development in July 2019 and November 2020. In a January 2021 rating decision, the RO granted separate ratings for right knee instability, rated 10 percent; right knee limitation of extension, rated 0 percent, left knee limitation of extension, rated 10 percent, each effective December 17, 2020. The RO also granted an increased 30 percent rating for right and left knee chondromalacia, also each effective December 17, 2020. The separate ratings are part of the increased rating claim for the right and left knees and are before the Board, to include consideration of the entire appeal period. The claim is back before the undersigned. 1. Entitlement to increases in the disability ratings assigned for right knee chondromalacia (currently rated 10 percent prior to December 17, 2020, and 30 percent thereafter) is remanded. 2. Entitlement to increases in the disability ratings assigned for left knee chondromalacia (currently rated 10 percent prior to December 17, 2020, and 30 percent thereafter) is remanded. 3. Entitlement to an initial disability rating in excess of 10 percent for left knee limitation of extension is remanded. 4. Entitlement to an initial compensable disability rating for right knee limitation of extension is remanded. 5. Entitlement to an initial compensable disability rating for right knee instability is remanded. VA examinations must include joint testing for active and passive motion in both weight-bearing and nonweight-bearing circumstances. Correia v. McDonald, 28 Vet. App. 158 (2016). Additionally, estimated ranges of motion should be provided during flare-ups, if feasible, even if the Veteran is not experiencing one during the examination. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). To date, and despite multiple remands, the VA knee examinations of record do not fully comport with the requirements of Correia or Sharp. See, e.g., December 2020 VA examination. Particularly, while the February 2021 VA examiner noted pain in flexion and extension, he did not note the point in the range of motion in which pain began. Thus, remand is necessary for a new VA knee examination. The Board also notes that the regulations pertaining to musculoskeletal disabilities were amended, effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). The Secretary of VA has determined that “claims pending prior to [February 7, 2021] will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied.” As pertinent to this issue, Diagnostic Code 5257 now requires additional evidence, such as type and treatment, to rate knee instability if such is present. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 20202); 38 C.F.R. § 4.71A, Diagnostic Code 5257 (Feb. 7, 2021). The examination should be conducted in such a way that it includes findings consistent with the new requirements of Diagnostic Code 5257 from February 7, 2021, to present. The record also reflects that there is a question as to whether the Veteran applied for Social Security Administration (SSA) disability benefits. See July 2012 VA treatment record (Veteran reports he’s “out on disability”). As this case is being remanded anyway, and because any SSA records may reasonably contain information relating to the Veteran’s issues on appeal, the AOJ should attempt to obtain any available SSA records on remand. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). The matters are REMANDED for the following: 1. The AOJ should request directly from the SSA relevant records, including determinations and medical records, regarding any claim for disability benefits. All attempts to fulfill this development should be documented in the claim file. If the records are unavailable, it should so be noted on the record and the reason for unavailability should be provided. 2. Obtain, if possible, records of relevant private evaluations and treatment the Veteran has received that have not previously been obtained. The Veteran must assist in the matter by identifying any private healthcare providers and by submitting releases for VA to obtain any private records identified. 3. Obtain copies of VA treatment records from March 2021 to the present. 4. After the above development above is completed, arrange for an orthopedic examination of the Veteran (or telehealth interview) to assess the current severity of his service-connected right and left knee disabilities, to include a retrospective opinion to the extent possible. The examiner must review the entire record in conjunction with the examination and note such review was conducted. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. (a) Range of motion measurements should be included for active and passive motion in both weight-bearing and nonweight-bearing circumstances for both (i) the present time and (ii) for the period from July 2012, if feasible. The Board again emphasizes that if pain is noted, the point in the range of motion at which pain starts should be clearly noted. (b) The examiner should address whether the Veteran has patellar instability of the left knee. Beginning February 7, 2021, only, patellar instability is defined as a diagnosed condition involving the patellofemoral complex. Does the Veteran requires a prescription by a medical provider for a brace, cane, and/or walker for his left knee? (c) The examiner should address whether the Veteran had patellar instability of the right knee prior to December 17, 2020. (d) From February 17, 2021, does the Veteran’s right knee patellar instability require a prescription by a medical provider for a brace, cane, and/or walker? (e) The examiner should address whether the Veteran has recurrent subluxation of the right or left knee consisting of either a sprain or ligament tear that causes persistent instability, and whether the Veteran requires the use of an assistive device or bracing for ambulation. If the Veteran has a ligament tear, identify whether it is incomplete, or complete (to include repaired, unrepaired, or failed repair). (f) If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran, to include the period from July 2012. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale based on the fact that the Veteran is not having a flare-up at the time of the examination will not be deemed adequate. In answering the foregoing, the examiner’s attention is directed to the following VA treatment records: • April 2012: complaints of right knee pain and locking • April 2012: reports ongoing spasms of knees bilaterally • July 2012: wearing knee braces since 2006 due to excessive pain, periodic swelling, and buckling; also uses cane to ambulate; reports “giving way” and locking of right knee • November 2012 VA examination: Vet reported regular/daily use of braces and a cane • Range of motion measurements in VA treatment records from 2013 to 2020 5. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Matta, 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.