Citation Nr: 21039735 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 13-06 546A DATE: July 1, 2021 REMANDED Entitlement to a higher evaluation in excess of 60 percent for left knee replacement prior to the assignment of a schedular temporary 100 percent evaluation on February 16, 2012, and following the end of the schedular temporary 100 percent evaluation on April 1, 2013, is remanded. Entitlement to a separate disability rating for left knee instability is remanded. REASONS FOR REMAND The Veteran served on active duty from August to September 1975 and from January to April 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Veteran was informed that the Veterans Law Judge who had conducted his January 2017 Board hearing was no longer at the Board and he had a right to an additional hearing before a different Veterans Law Judge. He was informed that if he did not respond within 30 days, the Board would assume that he did not want another hearing. The Veteran did not respond, and the Board will therefore adjudicate the appeal. In March 2018, the Board denied the Veteran's increased rating claim. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In August 2019, the Court vacated the Board's decision as to the above issues. The Court found the Board's discussion of whether severe painful motion was present to be incomplete. In addition, the Board was to consider a separate rating in light of the Veteran's statements regarding knee instability. The matter was last before the Board in May 2020 when it was remanded for further development pursuant to the Court's findings. A review of the Veteran's November 2020 VA knee and lower leg examination and January 2021 addendum opinion indicates that the Veteran uses a walker, brace, and wheelchair for his knee disability. The examination further notes difficulty bending, an inability to kneel, stand or walk for prolonged periods of time, as well as pain, fatigue, weakness, instability, and reports of falling due to his knee disability. The Board notes that, effective February 7, 2021, VA amended the criteria for rating musculoskeletal system and muscle injuries disabilities. See 83 Federal Register 76453 (November 30, 2020). VA published in the Federal Register the proposed rule for Schedule for Rating Disabilities: musculoskeletal system and muscle injuries on November 30, 2020. The summary in the Federal Register notes that the purposed of this revision is to ensure that the schedule uses current medical terminology and provided detailed and updated criteria for the evaluation of the musculoskeletal disabilities. The revised changes effected criteria for instability of the knee under Diagnostic Code 5257 and for impairment of the tibia and fibula under Diagnostic Code 5262. As such, the Board finds that to fully and fairly evaluate the nature and severity of the Veteran's service-connected left knee disabilities, a new examination, to include evaluation under the new criteria for Diagnostic Codes 5257 and 5262, is needed. Barr v. Nicholson, 21 Vet. App. 303 (2007). The matters are REMANDED for the following action: Schedule the Veteran for a VA orthopedic examination to evaluate the severity of his left knee disabilities. The examiner should provide an assessment of the current nature of the Veteran's left knee disabilities. Accordingly, the examiner is asked to describe the severity, frequency, and duration of all symptomatology associated with the condition. Also, all functional limitations present (a) after repetition over time and, separately, (b) during flare-ups should be reported. If for any reason the examiner is unable to conduct the required testing, he or she should clearly explain why that is so. The VA examiner should note the revised changes of the criteria for rating musculoskeletal system and muscle injuries disabilities, effective February 7, 2021, to include the change in criteria for instability of the knee under Diagnostic Code 5257 and for impairment of the tibia and fibula under Diagnostic Code 5262. With regard to Diagnostic Code 5257, the examiner should consider: a) the extent of any sprain or ligament tear (and repair thereof), b) the use of assistive devices (e.g., a cane, crutches, or a walker), c) the need for bracing for ambulation, and d) the extent and degree of any current instability. With regard to Diagnostic Code 5262, and medial tibial stress syndrome/shin splints, the examiner should consider: 1) the extent and duration of treatment; and 2) responsiveness to surgery, shoe orthotics, or other conservative treatment. (Continued on the next page) The examiner must complete rationales for all opinions and conclusions reached. K. Anderson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ariasaif, 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.