Citation Nr: 21027034 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 19-18 670A DATE: May 4, 2021 REMANDED Entitlement to an increased evaluation for osteoarthritis of the left knee, currently rated as 10 percent disabling, is remanded. Entitlement to an increased evaluation for osteoarthritis of the right knee, currently rated as 10 percent disabling, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1974 to June 1994. This case comes to the Board from an October 2017 decision of the Agency of Original Jurisdiction (AOJ), which denied claims for increased ratings for service-connected disabilities of the Veteran's knees. She timely appealed the denial of higher ratings. In April 2020, the Board issued a decision denying the increased rating claims for the knee disabilities while granting a separate claim for service-connected compensation for a lumbosacral spine disability. The Veteran appealed the unfavorable rulings to the United States Court of Appeals for Veterans Claims (Court). In December 2020, both parties filed a Joint Motion for Remand (JMR), in which they agreed that, when it denied increased ratings for the knees, the Board erred by relying on inadequate examination reports. By granting the JMR, the Court vacated the Board's April 2020 denial of increased ratings for the Veteran's service-connected knee disabilities and remanded these issues back to the Board. The Board's earlier denial of increased ratings was based on examination reports, dated October 2017 and September 2019. As the JMR explains, neither report complied with Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017), which, for the purpose of evaluating service-connected joint disabilities, usually requires VA examiners to elicit information from the Veteran about the extent of limited motion in the relevant joints after repeated use over time and when the symptoms of the relevant disability are at their worst i.e., "flare-ups." Because of these weaknesses in the earlier reports, the JMR concluded that, "a new or addendum opinion adequately addressing the additional functional limitation of Appellant's knees, to include after repetitive use and during flare-ups, is required." After the Board issued its now-vacated April 2020 decision, but before the parties filed their JMR with the Court, the Veteran requested a total disability rating based on individual unemployability (TDIU). The AOJ granted a TDIU award in September 2020. To help decide whether she was eligible for this benefit, the AOJ arranged examinations of all of the Veteran's service-connected disabilities, including her knee disabilities, in July 2020. Because the July 2020 knees report was not discussed in the JMR, the Board has considered the possibility that it might provide the information necessary to decide the knee claims now, potentially avoiding the need to remand them for a new examination and opinion. Unlike the reports which the parties criticized in the JMR, the April 2020 report does describe functional ability after repeated use over time and during flare-ups, providing estimates of range of motion, in degrees, under these conditions. Unfortunately, there are at least two new problems in the report which make it necessary to remand this case for a new examination. In part 14 of the July 2020 report ("Functional Impact"), the examiner indicated whether or not pain was present during the testing required by 38 C.F.R. § 4.59. Unfortunately, the examiner failed to record separate sets of range of motion results after testing in passive and active motion and in weightbearing and non-weightbearing. The second weakness in the July 2020 report concerns apparent inconsistencies in the information concerning the presence of knee instability. On part 3(e) of the examination questionnaire ("Additional factors contributing to disability"), the examiner identified "Instability of station" affecting both knees. But part 6(d) indicates that there was no joint instability in either knee during tests of anterior, posterior, medial, and lateral instability. A Veteran with a service-connected knee disability may receive separate disability ratings for limited flexion, limited extension, instability, and for dislocation or removal of the meniscus or semilunar cartilage. See Lyles v. Shulkin, 29 Vet. App. 107, 109 (2017); VAOPGCPREC 9-98; VAOPGCPREC 9-2004. VA recently amended the criteria for rating knee instability. 85 Fed. Reg. 76,453, 76,463 (November 30, 2020). These amendments apply only to claims pending as of February 7, 2021. Because the Veteran's increased rating claim was pending on that date, the Board must consider both versions and, for the period since the effective date of the amendment, apply the criteria most favorable to the Veteran. See Kuzma v. Principi, 341 F.3d 1327, 1328-29 (Fed. Cir. 2003); Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). The rating criteria for knee instability in effect prior to February 2021 authorized ratings of 10, 20, and 30 percent for knee instability that is, respectively, "slight", "moderate", and "severe." 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5257. The amended version of DC 5257 includes different criteria for patellar instability and for recurrent subluxation or instability. For both kinds of instability identified in the amended DC 5257, ratings of 20 and 30 percent require prescription for the use of assistive devices. Part 11 of the July 2020 report indicates that the Veteran regularly used both a walker and a wheelchair. But it was unclear from the report and the post-service treatment records whether any of these devices were prescribed to ameliorate the effects of knee instability. Under these circumstances, it would be useful for the post-remand examiner to clarify the conflicting information concerning knee instability and, if instability is present, provide the information necessary to apply the new version of DC 5257. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file copies of all records of the Veteran's VA treatment since June 2020. 2. Schedule a VA examination to ascertain the current severity of the service-connected disability of the Veteran's bilateral knees. The VBMS and Virtual VA electronic claims files must be made available to and be reviewed by the examiner. All indicated testing should be accomplished and all symptomatology associated with the knee disabilities should be identified. In addition to all findings identified on the appropriate examination form, the examiner should determine the effective range of motion in the Veteran's knees and present the results of range of motion tests in a written report which complies with 38 C.F.R. § 4.59 by recording separate sets of range of motion test results for both active and passive motion, and in weight bearing, and nonweight-bearing. The examiner's report should describe objective evidence of painful motion, if any, during each test. It is not sufficient merely to indicate whether or not pain was present during the required range of motion tests. If any of these findings are not possible, please provide an explanation. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description, if any, of reduced range of motion during flares or repetitive use. After the examination and records review are complete, the examiner must provide a medical opinion clarifying conflicting information in the July 2020 VA knees examination report. Please note that on part 3(e) of the examination questionnaire ("Additional factors contributing to disability"), the examiner noted "Instability of station" affecting both knees. But part 6(d) indicates that there was no joint instability in either knee during tests of anterior, posterior, medial, and lateral instability. Is it possible that the Veteran has experienced knee instability at certain times while this appeal has been pending (August 30, 2017 to the present) but that instability was not present at the time of the April 2020 examination? If the Veteran does have instability, the examiner should indicate whether she experiences patellar instability or recurrent subluxation or instability. The examiner should also clarify whether the use of a wheelchair and walker, also noted in the July 2020 examination report, is related to her knee disability and, if so, whether or not the use of a walker or wheelchair was prescribed by a physician. 3. The AOJ must ensure that the requested examination report and opinion comply with these instructions. If any report is insufficient, the AOJ should return the report to the examiner for any necessary corrective action. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Nye, 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.