Citation Nr: 21030250 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 17-41 781 DATE: May 18, 2021 ORDER A separate 20 percent rating for left knee locking is granted. REMANDED Entitlement to a rating in excess of 10 percent for left knee osteoarthritis is remanded. Entitlement to a rating in excess of 10 percent for left knee instability is remanded. FINDINGS OF FACT The Veteran's left knee disability is productive of locking. CONCLUSIONS OF LAW The criteria for a separate rating of 20 percent for left knee disability manifested by locking have been met. 38 U.S.C. § § 1155, 5107; 38 C.F.R. § 3.102, 4.7, 4.71a; Diagnostic Code 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1990 to June 1994, from November 2001 to November 2002, from March 2005 to June 2006, from July 2006 to August 2007 and from October 2009 to September 2010. The Veteran served in Afghanistan from May 2005 to May 2006 and in Iraq from December 2009 to August 2010. The Veteran served in combat and his decorations include the Combat Infantryman Badge. The Veteran presented sworn testimony at a hearing before the undersigned in January 2020. The Board remanded this issue for additional development in February 2020. Entitlement to a separate 20 percent rating for left knee locking. Diagnostic Code 5258 provides for assignment of a 20 percent rating for dislocation of the semilunar cartilage, with frequent episodes of "locking," pain and effusion into the joint. 38 C.F.R. § 4.71a. The Veteran seeks a higher rating for his service-connected left knee disability diagnosed as left knee patellofemoral syndrome. The Veteran is currently receiving a 10 percent disability rating for his left knee limited flexion and 10 percent for left knee instability under Diagnostic Codes 5010-5260. At the January 2020 hearing, the Veteran testified to a worsening of his left knee disabilities. See January 2020 Hr'g Tr. Diagnostic Code 5258 provides for assignment of a 20 percent rating for dislocation of the semilunar cartilage, with frequent episodes of "locking," pain and effusion into the joint. 38 C.F.R. § 4.71a. The Board finds that a separate 20 percent rating is warranted under Diagnostic Code 5258 for left knee to account for the popping and intermittent locking the Veteran experiences. The evidence, most recently the October 2020 VA examination report, shows that the Veteran has had a meniscal condition in his left knee that is productive of episodes of joint locking, joint pain and joint effusions. Thus, the Board finds that a separate 20 percent rating is warranted under Diagnostic Code 5258 to compensate him for these symptoms. See 38 C.F.R. § 4.20; see also Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that the evaluation of a knee disability under Diagnostic Code 5257 and Diagnostic Code 5260 or 5261 do not preclude, as a matter of law, a separate evaluation under Diagnostic Code 5258). REASONS FOR REMAND Entitlement to a rating in excess of 10 percent for left knee limitation of motion and entitlement to a rating in excess of 10 percent for left knee instability. The Veteran asserts that the severity of his left knee limitation of motion and left knee instability are worse than their current 10 percent disability ratings. See January 2020 Hr'g Tr. As previously noted, the Board remanded this issue in February 2020, for additional development, to include a contemporaneous VA examination to assess the current nature, extent, and severity of his left knee disability. Post-remand, the Veteran was afforded a VA examination in October 2020 for his left knee disabilities. However, the Veteran did report flare-ups of the knee and the examination was not conducted during a flare-up. The VA examiner held that the examination is neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during flare-ups; the examiner noted pain significantly limited functional ability with flare-ups but did not describe in terms of range of motion. The examiner reported frequent flare-ups after prolonged walking or physical walking or physical activity that causes varying degrees of swelling that constricts the joint which prevents him from squatting. See October 2020 Knee and Lower Leg DBQ Examination. Additionally, the Veteran reported a worsening of his left knee instability; however, the VA examiner noted, the Veteran has no history of lateral left instability. The Board finds that the October 2020 VA examination is consistent with regard to these issues. The Board emphasizes that in Sharp the Court held that the examiner must "elicit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why she could not do so." Sharp v. Shulkin, 29 Vet. App. 26 (2017). As such, the examiner's explanation that he was unable estimate the Veteran's limitation of motion during flare-ups renders the examination report not adequate for rating purposes. As such, this appeal must be remanded. The Board finds that the October 2020 VA examiner did not substantially comply with the remand directives of the February 2020 Board decision. Thus, a remand is necessary to obtain a new VA examination for the Veteran's left knee disabilities that comply with Sharp. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current nature and severity of his left knee disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should identify all left knee pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 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. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. (Continued on the next page) If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jacquelynn M. Jordan, 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.