Citation Nr: 21032822 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 09-29 798 DATE: May 28, 2021 REMANDED Entitlement to a rating in excess of 10 percent for right knee arthritis is remanded. Entitlement to a compensable rating for right knee reduced extension prior to February 3, 2021, is remanded. Entitlement to a compensable rating for right knee instability prior to February 3, 2021, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from July 1963 to February 1984. This matter comes before the Board of Veterans' Appeals (Board) from a September 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2014 and November 2020, the Veteran testified before the undersigned Veterans Law Judge. In April 2015, August 2018, and January 2021, the Board remanded the appeal for further development. Specifically, in January 2021, the Board remanded this matter for the RO to obtain a new knee examination. A new examination was obtained in February 2021. The Veteran asserts that his service-connected right knee disability merits increased evaluations. See April 2021 Post-Remand Brief. The Veteran additionally asserts that his service-connected right knee extension and instability merit an increased evaluation prior to February 3, 2021. See id. at 4. He also asserts that he is entitled to a separate rating for right knee effusion. See id. Although the Board regrets prolonging this case further, remand is unfortunately warranted again as the February 2021 examination requires clarification. Specifically, the Veteran reported right knee instability at the November 2020 Board hearing and the February 2021 C&P examination, and the examiner noted recurrent subluxation or persistent instability and recurrent patellar instability in the examination report; however, the examiner did not provide objective measurements of instability or indicate whether stability tests were conducted. Additionally, the examiner noted that the Veteran reported daily flare-ups that manifest a level of pain up to 10 out of 10 and that flare-ups can last days and up to a week. And although the examiner indicated that the examination was conducted during a flare-up, the examiner did not indicate the severity of the flare-up and observed that it only reduced the Veteran's flexion from 45 degrees to 40 degrees and did not further limit his extension. The Veteran's credible reports of functional loss and severe flare-up pain that can last days and reaches a pain level of 10 out of 10 conflicts with the finding that flare-ups have such a minimal impact on range of motion as indicated by the examiner. Moreover, the examiner did not "cite and discuss evidence," as requested on the report itself, to support the finding of 40 degrees of flexion and normal extension due to flare-ups. Furthermore, the examiner noted that the Veteran's active extension was normal (0 degrees), extension after repetitive use was 10 degrees, extension after repeated use over time was 5 degrees, and extension during flare-ups was normal (0 degrees). The finding that three repetitions have a greater impact on extension than repeated use over time requires clarification, given the Veteran's credible reports of difficulty with prolonged activity. Furthermore, the finding that three repetitions impact his extension greater than a 10 out of 10 painful flare-up, which, according to the examination report, has no impact on extension, also requires clarification. For these reasons, remand is warranted to obtain an addendum opinion clarifying the above findings of the February 2021 knee examination. Remand is also warranted to obtain an opinion regarding whether the Veteran's right knee extension and instability warrant increased ratings prior to February 3, 2021. Updated VA and private treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, secure outstanding relevant private treatment records. 3. Then obtain an addendum opinion from the same examiner who conducted the February 2021 knee examination, if available, or a different examiner if unavailable. If the same examiner is unavailable, it is preferable that the new examiner is an orthopedic specialist and must not be the same examiner who conducted the November 2017 examination. A new examination is not needed unless the examiner indicates otherwise. If the examiner believes a new examination is needed to address the below directives, arrangements must be made to schedule the Veteran for a new examination. The examiner is asked to review the claims file, including this Remand decision, the February 2021 C&P knee examination, and the November 2020 Board hearing transcript. After a thorough review, the examiner is asked to address the following questions: (a.) The February 2021 C&P examination report indicates that the Veteran has recurrent subluxation or persistent instability and recurrent patellar instability; however, it does not include objective measurements of instability or indicate whether stability tests were conducted. Based on the Veteran's subjective reports of instability at the February 2021 C&P examination and the November 2020 Board hearing, please provide an opinion regarding the severity of his instability (slight, moderate, or severe) and provide an opinion regarding measurements as if testing had been conducted. If it is not possible to do this without resort to mere speculation, an in-person examination must be scheduled to conduct objective stability testing. (b.) The February 2021 C&P examination report indicates that the Veteran reported daily flare-ups that manifest a level of pain up to 10 out of 10 and that flare-ups can last days and up to a week. Although the examination report indicates that the examination was conducted during a flare-up, it did not indicate the severity of the flare-up and it indicates that it only reduced the Veteran's flexion from 45 degrees to 40 degrees and did not further limit his extension. Please consider the Veteran's credible reports of functional loss and severe flare-up pain that can last days and reaches a pain level of 10 out of 10, and opine on the additional loss of flexion and extension when the Veteran's right knee pain is 10/10 and has lasted for several days. If the examiner finds that 10/10 pain does not limit flexion or extension beyond what was noted in the examination report, the examiner must provide a detailed explanation as to how 10/10 pain that lasts several days does not further limit range of motion. Please also "cite and discuss evidence," as requested on the report itself, to support any findings. (c.) The February 2021 C&P examination report notes that the Veteran's active extension was normal (0 degrees), extension after repetitive use was 10 degrees, extension after repeated use over time was 5 degrees, and extension during flare-ups was normal (0 degrees). Please explain why three repetitions have a greater impact on extension than repeated use over time, especially given the Veteran's credible reports of difficulty with prolonged activity. Please also explain why the additional loss of extension caused by three repetitions is greater than a 10/10 painful flare-up, which, according to the examination report, has no impact on extension. 4. Please also consider the Veteran's reported history in the January 2009 private knee examination, and the May 2013, September 2017, and November 2017 C&P examinations, and provide an opinion describing functional impairment of the Veteran's right knee, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined and the reason why those facts cannot be determined if unable to opine without resort to mere speculation (e.g., lack of insufficient information or evidence, the limits of medical knowledge, etc.). If a new examination is conducted, the examiner is asked to ensure the examination report reflects the recent regulatory amendments affecting the rating of knee disabilities, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). A complete rationale should be given for all opinions and conclusions expressed. If unable to opine without resorting to speculation, please provide a basis for reaching this conclusion. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. deBruyn, 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.