Citation Nr: 21029214 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 14-42 059 DATE: May 12, 2021 REMANDED Entitlement to a rating in excess of 10 percent for right knee tendinopathy is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from November 1990 to August 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2013 Department of Veterans Affairs (VA) rating decision. In November 2017, a videoconference hearing was held before the undersigned; a transcript is in the record. In May 2018 and September 2020, this matter and the matter of entitlement to service connection for a lumbar spine disability were remanded for additional development. A January 2021 rating decision awarded service connection for a lumbar spine disability, fully resolving that issue. The Board is aware this matter was remanded twice before (and regrets the delay in final adjudication inherent with yet another remand). However, the responses to the prior remands did not adequately comply with prior remand instructions, and corrective action is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). At the outset, the Board notes the rating codesheets (beginning on July 2013) appear to contain misleading and incorrect information regarding the rating for the right knee disability. The right knee was awarded a 10 percent rating effective July 7, 2004 (the date service connection was awarded). He filed multiple claims to increase the rating for the right knee; November 2007, January 2009, and March 2010 rating decisions have continued the 10 percent rating and their corresponding rating codesheets reflect the 10 percent rating for the right knee has been in effect since July 7, 2004. He did not appeal those decisions and they are final. See 38 U.C.S. § 7105. On September 2011, VA received a new claim for an increased rating for the right knee disability. The July 2013 rating decision narrative continued the 10 percent rating, but the corresponding rating codesheet appears to close the compensable period for the right knee disability, which if accepted at face value has the same effect as [impermissible] severance of service connection for the right knee disability. There is no explanation in the record as to why the July 2013 and subsequent rating codesheets essentially discontinued compensation for a right knee disability without a rating action. The Veteran timely appealed the July 2013 rating decision that continued denial of a rating in excess of 10 percent for his right knee disability. The Board is guided by what is in the July 2013 rating decision narrative and considers what is listed on the July 2013 and subsequent codesheets as it relates to the right knee disability rating to be in error. As a threshold matter, correction of the codesheets to reflect what is stated in the July 2013 narrative is necessary. The Veteran's right knee disability is currently rated 10 percent (as tendinopathy). Knee disabilities may be assigned separate ratings for arthritis (established by x-ray findings) with compensable limitations of flexion and/or extension (or under Diagnostic Code (Code) 5003 based on painful motion), subluxation or instability, and dislocated or symptomatic post-removal semilunar cartilage. See Lyles v. Shulkin, 29 Vet. App. 107 (2017); VAOPGCPREC 23-97; VAOPGCPREC 9-98; VAOPGCPREC 9-04. The September 2020 Board remand ordered a new VA examination by an appropriate clinician in orthopedics to assess the severity of the Veteran's right knee disability that specifically addressed the additional functional loss during flare-ups (as required under Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017)). On January 2021 VA examination, the Veteran reported he cannot stand for long periods. The examiner, a physician's assistant, opined that, while pain significantly limits functional ability with repeated use over a period of time and during a flare up, this functional loss could be described as flexion is 0 to 140 degrees and extension is 140 to 0 degrees, i.e., normal range of motion. The Board is aware of the difficulty in providing an opinion [here, regarding severity of flare-ups] that in part requires some speculation, particularly when the Veteran is not experiencing a flare-up at the time of examination. Nonetheless, to comply with governing legal guidelines a medical opinion that addresses the degree of severity of the knee disability during flare-ups is necessary Additionally, while July 2014, July 2019, and January 2021 VA examiners found the Veteran does not have right knee instability, it was noted that he uses a hinged brace and reported to the July 2019 and January 2021 VA examiners that his right knee gives out. Moreover, a June 2014 statement by a private provider indicates effusion and a positive Lachman test 1+ were found on examination. The VA providers did not reconcile the Veteran's regular/constant use of a VA-prescribed hinged knee brace and reported problems with his knee giving out with their findings of no instability. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). As the knee disability picture presented suggests instability which would involve consideration of Code 5257, which was revised by the new rating criteria, and the record does not contain sufficient evidence to rate the disability under the new rating criteria, another examination is needed. The matter is REMANDED for the following: 1. Correct and amend [for the record] the rating codesheet to reflect at least a 10 percent rating for the right knee disability since July 7, 2004 (throughout ). 2. Arrange for the Veteran to be examined (by a clinician in orthopedics) to assess the current nature and severity of his service-connected right knee disability. The Veteran's record (to include his statements reporting use of a right knee brace and describing problems with balance, and November 2017 hearing testimony) must be reviewed by the examiner in conjunction with the examination. On review of the record and examination of the Veteran, the examiner should: (a.) Assess the current severity of the Veteran's service-connected right knee disability. Any indicated tests or studies (including updated x-rays and range of motion studies of the joint in active motion, passive motion, weight-bearing, and non-weight-bearing) should be completed. All pathology, symptoms (their frequency and severity), and any associated impairment of function should be described in detail. The examiner should specifically indicate whether there is instability/subluxation of the knee. If instability or subluxation is not found, reconcile such finding with the Veteran's reported regular use of a VA-prescribed knee brace and his reports of problems with balance. The examiner must review the rating criteria under 38 C.F.R. § 3.71a prior to February 7, 2021 and the new revised rating criteria effective February 7, 2021 (and the findings reported must be sufficient to consider both the prior and the revised criteria). (b.) The examiner is also asked to furnish a current and retrospective opinion regarding the functional loss attributable to the Veteran's service-connected right knee disability occurring during flare-ups and when the knee is used repeatedly over a period of time. The examiner should note (elicit from the Veteran a report of) the frequency and duration of flare-ups, and describe how/provide an estimate of the extent to which the knee disability limits/has limited functioning during flare-ups (currently, and from September 2010 to the present, as reflected by the record). The determination should be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. If such cannot feasibly be described, or if an estimate of the additional impairment during flare-ups cannot be provided based on the Veteran's reports and what is shown by clinical data of record, there must be a full explanation why that is so. If an opinion requested cannot be provided "without resort to mere speculation" there must be explanation why that is so. The examiner must expressly indicate whether the Veteran's own descriptions of his functional impairment during flare-ups may be relied upon to form a conclusion, and if not, why not. Complete rationale should accompany all opinions. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Naumovich, 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.