Citation Nr: 21026978 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 14-36 180 DATE: May 4, 2021 REMANDED Entitlement to an increased rating for residuals left knee, lateral dislocation of patella and hemarthrosis with status post arthroscopy, initially evaluated as non-compensable prior to June 20, 2014, and 10 percent disabling thereafter, is remanded. Entitlement to a separate compensable evaluation for left knee lateral instability associated with lateral dislocation of patella and hemarthrosis with status post arthroscopy prior to October 16, 2019 and in excess of 10 percent thereafter is remanded. REASONS FOR REMAND The Veteran served in active duty in the United States Navy from April 1993 to April 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The matter of an increased rating for left knee, lateral dislocation of patella and hemarthrosis with status post arthroscopy, initially evaluated as non-compensable prior to June 20, 2014, and 10 percent disabling thereafter, was remanded to the Agency of Original Jurisdiction (AOJ) for further development in January 2019. The matter now returns to the Board for appellate consideration. In August 2020, the RO assigned a separate evaluation for left knee lateral instability associated with lateral dislocation of patella and hemarthrosis with status post arthroscopy evaluated as 10 percent disabling effective October 16, 2019. 1. Entitlement to an increased rating for residuals of left knee, lateral dislocation of patella and hemarthrosis with status post arthroscopy, initially evaluated as non-compensable prior to June 20, 2014, and 10 percent disabling thereafter, is remanded. 2. Entitlement to a separate compensable evaluation for left knee lateral instability associated with lateral dislocation of patella and hemarthrosis with status post arthroscopy prior to October 16, 2019 and in excess of 10 percent thereafter is remanded. The Veteran contends that his left knee disability is more severe than contemplated by the assigned disability ratings. Although the Board regrets the delay, a remand is required before an appellate decision can be rendered. An October 2019 VA examination report reflects abnormal ranges of motion in the left knee, with flexion limited to 100 degrees and extension to 0 degrees, and significant pain upon active range of motion testing. The examination also reflects pain on weight bearing and mild pain in medial upper knee joint, with evidence of crepitus and slight lateral instability. The examiner notes that pain, weakness, and incoordination limit functional ability upon repeated use and flare ups; however, the examiner indicates there is no conceptual or empirical basis for making a determination without directly observing function under these conditions without mere speculation. The examination demonstrates no evidence of ankylosis, subluxation, nor a meniscal condition. Furthermore, the examiner states that there is objective evidence of pain on passive range of motion and weight bearing testing. Lastly, the examiner reports that the Veteran's residuals of left knee with history of lateral dislocation of patella and hemarthrosis with status post arthroscopy has now progressed into tricompartmental osteoarthritis of left tibiofemoral joint along with suprapatellar effusion and that his knee pain causes distress, fatigue, and limitation on activities, to include sitting, standing, running, jogging, walking, and squatting. The Board finds the October 2019 examination is inadequate. Passive range of motion measurements upon weight bearing and non-weight bearing testing were not documented. Correia v. McDonald, 28 Vet. App. 158 (2016). Furthermore, the examiner noted objective evidence of pain on passive rant of motion test, and on weight bearing and non-weight bearing testing. As such, an addendum opinion is needed to address the Veteran's passive range of motion measurements, as the examiner has also indicated objective evidence of pain on passive range of motion testing. The Board notes that a revised criterion for rating musculoskeletal claims pursuant to 38 C.F.R. § 4.71a came into effect February 7, 2021. As the Veteran's claim for his left knee condition has most recently been rated separately under Diagnostic Codes (DC) 5257, which in part has been revised, the current severity of the left knee should be evaluated under these revised regulations. The matters are REMANDED for the following actions: 1. Obtain an addendum opinion from the examiner who conducted the October 2019 VA examination or another appropriate clinician. The examiner providing the opinions must be provided access to the electronic claims file and indicate review of the file in the examination report. The claims folder and a copy of this remand in its entirety must be provided to the examiner in conjunction with the addendum opinion. The examiner is requested to review all pertinent records associated with the claims file, and the examiner must indicate on the examination report that such review was undertaken. If examination of the Veteran is necessary, such should be arranged. To comply with Correia v. McDonald, the examiner must test and record the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing of the both knees. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (Continued on the next page) The examiner must ensure that the revised rating criteria of Diagnostic Code 5257 (effective from February 7, 2021) are amply addressed, whether or not the revised criteria are reflected in the provided Disability Benefits Questionnaire. This discussion should include a full description of the whether this disability is manifested by a ligament tear (incomplete, complete), a diagnosed condition involving the quadriceps tendon, the patella, or the patellar tendon, whether or not such has been repaired, and whether assistive devices such as crutches, a walker, and/or a brace have been prescribed by a medical professional. 2. Readjudicate the Veteran's claim on appeal. If the benefit sought on appeal remains denied, provide the Veteran and his representative a supplemental statement of the case and allow an appropriate period for response. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Asfaw, 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.