Citation Nr: 21026365 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 14-15 267 DATE: April 30, 2021 REMANDED Entitlement to a rating in excess of 20 percent for a lumbar spine disability under Diagnostic Code 5242 is remanded. Entitlement to a rating in excess of 10 percent for left knee patellofemoral syndrome under Diagnostic Code 5260 is remanded. Entitlement to a rating in excess of 10 percent for right knee patellofemoral syndrome under Diagnostic Code 5260 is remanded. Entitlement to a rating in excess of 20 percent for left knee limitation of extension under Diagnostic Code 5261 is remanded. Entitlement to a compensable rating for left knee “popping and locking” under Diagnostic Code 5258 is remanded. Entitlement to a compensable rating for right knee limitation of extension under Diagnostic Code 5261 is remanded. Entitlement to an effective date prior to March 24, 2017 for the 20 percent rating assigned for left knee moderate instability under Diagnostic Code 5257 is remanded. Entitlement to an effective date prior to March 24, 2017 for the 10 percent rating assigned for right knee slight instability under Diagnostic Code 5257 is remanded. REASONS FOR REMAND These matters were previously before the Board of Veterans’ Appeals in September 2019. In December 2020, the United States Court of Appeals for Veterans Claims (Court) granted a joint motion for partial remand (JMPR) that vacated the Board’s September 2019 decision to the extent that it denied higher ratings under the lumbar spine and knee diagnostic codes listed above. The JMPR also vacated the Board’s decision regarding the effective dates of the ratings assigned for knee instability. In the JMPR, the parties agreed the Board relied on an inadequate examination report in its September 2019 decision to the extent that the Veteran’s February 2018 examiner failed to adequately explain how the ranges of motion of the Veteran’s lumbar spine and bilateral knees could be the same during flare-ups when compared with initial range of motion testing in light of the Veteran’s lay reports of locking of these joints during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017); see also Chavis v. McDonough, No. 18-2928 (U.S. Vet. App. April 16, 2021). The parties also agreed the Board provided an inadequate statement of reasons and bases for its assignment of an effective date of March 24, 2017 for the ratings assigned for knee instability. The terms of the JMPR direct the Board to obtain a new lumbar spine and knee examination to properly address the Veteran’s functional impairment during flare-ups. Although not specifically required under the terms of the JMPR, the Board finds a new examination will also provide the opportunity for development of additional evidence to guide its analysis of the approximate onset date of the Veteran’s bilateral knee instability. See Chotta v. Peake, 22 Vet. App. 80 (2008). The matters are REMANDED for the following action: Schedule the Veteran for a new examination to assess the severity of his service-connected lumbar spine and bilateral knee disabilities. The selected examiner must test range of motion of the lumbar spine and knees for pain in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why this is so. The examiner should indicate whether, and to what extent, the Veteran experiences functional loss due to pain or any of the other symptoms noted above during flare-ups and/or with repeated use. The examiner is advised that the Veteran is competent to report limitation during flare-ups. If additional functional loss is found beyond what was shown on initial range-of-motion and repetitive-use testing, the examiner must assess this impairment in terms of additional degrees of limitation of motion, to the extent possible, or otherwise provide an explanation as to why it cannot be expressed in terms of additional degrees of limitation of motion. It should be noted that stating the requisite findings cannot be provided without resorting to speculation because the Veteran is not experiencing a flare-up at the time of the examination will be deemed an inadequate reasoning for failing to provide the estimate of additional degrees of limitation of motion. There must be consideration of the Veteran’s lay reports in this regard. If the examiner determines there is no additional range-of-motion loss during flare-ups when compared with initial range of motion and/or repetitive-use testing, the examiner must attempt to reconcile this finding with the Veteran’s previous lay reports that his lumbar spine and knees “lock up” during flare-ups. Further, the examiner is asked to address whether the Veteran’s lay reports of his lumbar spine and knees locking up during flare-ups is the functional equivalent of ankylosis. The examiner is also asked to solicit information from the Veteran to facilitate a retrospective opinion addressing the approximate date of onset of his left and right knee instability, i.e., the examiner is asked to provide an estimate, in accordance with the “at least as likely as not” standard, of the approximate date of onset of the instability discussed by the Veteran during his March 2017 hearing before the undersigned based on his lay reports and the other evidence of record. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. S. Kyle, 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.