Citation Nr: 21031156 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 18-14 625 DATE: May 20, 2021 REMANDED Entitlement to a rating in excess of 10 percent for degenerative joint disease (DJD) of the left knee based on limitation of extension is remanded. Entitlement to a compensable rating for DJD of the right knee based on limitation of extension is remanded. Entitlement to a rating in excess of 10 percent for DJD of the right knee based on limitation of flexion is remanded. Entitlement to a separate compensable rating prior to January 19, 2018, and in excess of 10 percent thereafter for right knee instability is remanded. Entitlement to a separate compensable rating prior to January 19, 2018, and in excess of 10 percent thereafter for left knee instability is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1979 to June 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which awarded a 10 percent evaluation for left knee DJD based on limitation of extension and a noncompensable rating for right knee DJD based on limitation of extension, both effective February 6, 2013. The RO also continued the 10 percent disabling rating for DJD of the right knee based on limitation of flexion. In February 2018, the RO additionally assigned 10 percent evaluations for right and left knee instability effective January 19, 2018. The Board finds the ratings for ligament laxity/instability of the bilateral knees are part and parcel of the Veteran's claims for an increased rating for his bilateral knee disabilities currently on appeal. The Veteran testified at a hearing before the Board in March 2021. The transcript has been associated with the record. Increased Ratings for the Bilateral Knees Evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records contained in the claims file are dated May 2011. The Veteran testified that he has received VA treatment for his bilateral knee conditions since 2011. See March 2021 Board hearing transcript, pp. 5, 7. Any VA treatment records are within VA's constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. The Veteran additionally testified that he received private treatment for his bilateral knee conditions. There are no releveant private treatment records associated with the claims file. A remand is required to allow VA to obtain authorization and request these records. The Veteran testified that his bilateral knee conditions had worsened since his most recent VA examination in January 2018. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). In addition, in reviewing the January 2018 VA examination report, the Board finds that on testing of the bilateral knees, the examiner while noting pain on examination did not specify at which point pain began during range of motion testing. In conducting these measurements, the examiner should note not only whether pain on motion is present, but if present, where in the range of motion the pain sets in and whether that pain causes functional loss. Accordingly, the examination findings are not adequate for a contemporaneous rating since the Board cannot properly assess functional impairment which is done with consideration of pain. Knowing where pain sets in is particularly important in this case where functional impairment has been noted. Correia v. McDonald, 28 Vet. App. 158 (2016). In light of the Veteran's testimony and the inadequacy delineated above, a contemporaneous VA examination is needed to properly assess the current severity of the Veteran's bilateral knee conditions. In addition, the Board notes that VA amended some of its' rating criteria for musculoskeletal disabilities, including arthritis and the knee under 38 C.F.R. § 4.71a, effective February 7, 2021. See 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021). The examination must consider this new rating criteria. Finally, a Remand is required for the RO to provide the Veteran with a supplemental statement of the case (SSOC) which provides him with notice of the new musculoskeletal rating criteria and adjudicates the claims applying these criteria. See 38 C.F.R. § 19.31. When again rating the Veteran's disabilities the RO should be mindful of the fact that it may only apply the new rating criteria for arthritis and the knees from the effective date of the change in the Diagnostic Code-February 7, 2021. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for all relevant private providers for treatment of his bilateral knees. Make two requests for the authorized records from the identified providers unless it is clear after the first request that a second request would be futile. All requests for records and their responses must be documented. 2. Obtain the Veteran's VA treatment records for the period from May 2011 to the present. 3. After the records development is completed, schedule the Veteran for a VA examination to evaluate the current level of severity of the bilateral knee disabilities on appeal. The claims folder and all pertinent treatment records should be made available to the examiner for review, and review of such records should be noted in any subsequent report. A) The examiner is asked specifically to provide range of motion testing (ROM) for the knees for active motion, passive motion, in both weight-bearing, and nonweight-bearing. B) In addition, the examiner must discuss pain for ROM movements on active, passive, and repetitive use testing. The examiner is asked to address the following questions: (a) Are any ROM movements painful on active, passive, and repetitive use testing? If yes, identify whether active, passive, and repetitive use; and, identify at the point where pain starts. (b) If yes (there are painful movements), does the pain contribute to functional loss or additional limitation of ROM? Please further describe the functional loss or additional limitation of ROM, to include noting the exact point at which pain starts. (c) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. C) In addition, the examiner must discuss pain when used in weight-bearing or in nonweight-bearing. The examiner is asked to address the following questions: (a) Is there pain when the joint is used in weight-bearing or nonweight-bearing? If yes, identify whether weight-bearing or nonweight-bearing. (b) If yes (there is pain when used in weight-bearing or nonweight-bearing), does the pain contribute to functional loss or additional limitation of ROM? Please further describe these limitations. (c) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. For all ROM testing, if pain is noted, the exact point at which pain is first noted must be specified. D) The examiner must review the claims file and elicit information regarding the severity, frequency, and duration of all symptoms during flare-ups and repeated use over time, and the degree of functional loss during flare-ups and/or repeated used over time. If possible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran unless deemed to lack credibility or be inconsistent with other evidence such as test results. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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. E) The examiner must indicate whether the Veteran has diagnosed patellar instability (a diagnosed condition involving the patellofemoral complex with recurrent instability) with or without a history of surgical repair and whether such instability requires a prescription from a medical provider for a brace, cane, and/or walker. The examiner is notified that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. The examiner is further informed that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability including, but not limited to, arthroscopy to remove loose bodies and joint aspiration. F) The examiner must indicate whether the Veteran has recurrent subluxation or instability of the either knee. Notably, the examiner must state whether there is a sprain of either knee - an incomplete ligament tear or complete ligament tear, and if so, whether its repaired, unrepaired, or failed repair causing persistent instability with or without a prescription from a medical provider for an assistive device (cane, crutch, walker) or bracing for ambulation. 4. After undertaking the above development, the RO should issue the Veteran a SSOC that, among other things, adjudicates and provides the Veteran with notice of the new musculoskeletal Diagnostic Codes for rating arthritis and the knees. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures K. L. WALLIN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Samuelson, 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.