Citation Nr: 21028104 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 15-27 100 DATE: May 10, 2021 REMANDED Entitlement to a rating higher than 10 percent for chondromalacia patella in the right knee is remanded. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran had active military service from August 1987 to April 1989. This matter comes before the Board of Veterans' Appeals (Board) from the October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a November 2018 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Entitlement to an increased rating for chondromalacia patella in the right knee is remanded. The Veteran contends that his right knee condition warrants a higher rating. This matter was previously before the Board in September 2020 and was remanded for further development. Specifically, the Board found that the Veteran's previous December 2018 VA examination did not comply with the requirements in Correia v. McDonald, 28 Vet. Ap. 158, 168 (2016). The Board stated that the examination did not contain both passive and active, or weight bearing and non-weight bearing, range of motion measurements. Therefore, this matter was remanded for the Veteran to undergo another VA examination. Subsequently, in February 2021, the Veteran underwent a VA knee examination. The Veteran reported flare-ups of his knee that manifest in a lesser ability to tolerate weight bearing activities such as standing, walking, running, climbing, kneeling, squatting, or rising. However, in the section regarding flare ups, the examiner stated that the evidence (statements from the Veteran) did not suggest that pain, fatigability, weakness, lack of endurance, or incoordination which significantly limits functional ability with flare-ups. Therefore, the examiner did not provide an estimate for any additional loss in range of motion during a flare up. The Board finds this inconsistency warrants a new examination to determine accurately any additional loss in range of motion during a flare up (as the record reflects that the Veteran does have flare ups). Therefore, the Board finds that the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) and a remand is warranted for a new examiantion by a different examiner. The Board also notes that during the pendency of the appeal, the rating criteria for rating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's appeal under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. The regulatory changes reworded the Diagnostic Code 5003 from "Arthritis, degenerative (hypertrophic or osteoarthritis)" to "Degenerative arthritis, other than post-traumatic", but did not change the criteria for rating disabilities under the diagnostic code. Diagnostic Code 5003 directs that a rating shall be awarded on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. If noncompensable limitation of motion is demonstrated, a 10 percent rating is assigned for each major joint or group of minor joints affected. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The regulatory changes reworded Diagnostic Code 5010 from "Arthritis, due to trauma, substantiated by X-ray findings" to "Post-traumatic arthritis". Prior to the regulatory change, Diagnostic Code 5010 directed that the disability be rated as degenerative arthritis under Diagnostic Code 5003. As of February 7, 2021, under the amended criteria, Diagnostic Code 5010 directs that the disability be rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with 38 C.F.R. § 4.25. The regulatory changes reworded the Diagnostic Code 5014 from "Osteomalacia" to "Osteomalacia, residuals of", but did not change the criteria for rating disabilities under the diagnostic code. Further criteria for rating disabilities of the knees applicable in this case are found in 38 C.F.R. § 4.71a, Diagnostic Codes 5257, 5260, and 5261. Prior to the regulatory changes, under Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability; a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability; and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. Objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257 as in effect prior to February 7, 2021. Therefore, objective medical evidence cannot be categorically found more probative than lay evidence with respect to that diagnostic code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). As of February 7, 2021, under Diagnostic Code 5257, a 10 percent rating is warranted when there is a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation; or where there is a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted when there is a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; an unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation; or a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. A 30 percent rating is warranted when there is an unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation; or there is a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. The regulatory changes did not affect Diagnostic Codes 5260 and 5261. Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a noncompensable rating is warranted for extension limited to 5 degrees. A 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A 50 percent rating is warranted for extension limited to 45 degrees or greater. The Board is of the opinion that a new examination would be useful in obtaining findings relevant to the new regulations. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician, other than the clinician that performed the February 2021 knee examination, to determine the current severity of his service-connected right knee condition. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the old and new knee rating criteria. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Following completion of the above, and a review of any additional evidence received, the RO should also undertake any other development it deems to be necessary, to include, if warranted, an addendum medical opinion which considers any newly received evidence. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Mountford, 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.