Citation Nr: 21039971 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 15-07 863 DATE: July 2, 2021 REMANDED Entitlement to a rating in excess of 20 percent for right knee dislocated semilunar cartilage and degenerative arthritis is remanded. Entitlement to a rating in excess of 10 percent for right knee recurrent subluxation and lateral instability is remanded. REASONS FOR REMAND The Veteran had honorable active service from March 1986 to November 1993. This matter comes before the Board of Veterans' Appeals (Board) from a March 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran initially requested a video-conference hearing but canceled his request in September 2018. This appeal was previously remanded by the Board in November 2018 and October 2020. Entitlement to higher ratings for a right knee disability, currently rated at 20 percent disabling for dislocated semilunar cartilage and degenerative arthritis, and 10 percent for recurrent subluxation and lateral instability, is remanded. Pursuant to the October 2020 Board remand, the Veteran was afforded a new VA knee examination in December 2020. The examiner found that the Veteran had moderate lateral instability of the right knee, limited motion, and that he constantly ambulated with a cane. The Board notes that since that examination, some criteria for rating knee disability were revised, 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 38C.F.R. §4.71a). The revisions include a change in Diagnostic Code (DC) 5257 (for recurrent subluxation or instability). Notably a higher 20 percent rating for instability is warranted for sprain, incomplete ligament tear, or repaired ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane, crutch, walker) for ambulation; or, unrepaired or failed repair of complete ligament tear causing persistent instability, without a prescription from a medical provider for an assistive device or bracing for ambulation. A 30 percent (maximum) rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. Further, for patellar instability, a 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription for a brace, cane, or walker. A 30 percent rating is warranted for the same, requiring a brace plus a walker or cane. The Board notes that while the December 2020 VA examiner only indicated that the Veteran used a cane as an assistive device for locomotion, previous VA treatment records, including the previous 2017 VA examination, indicate that the Veteran used both a brace and a cane. A February 2017 VA treatment record showed the Veteran reporting problems with his hinged knee brace, and indicated that prosthetics would address the issue. The Veteran reported a worsening of his condition since the 2017 VA examination, and those reports prompted the December 2020 VA examination. Thus, the Board would anticipate continued use of the brace. Nonetheless, regardless of whether the Veteran is using a brace or a cane, the rating criteria require assessing whether a medical provider has prescribed such assistive devices, not whether they are currently being used. VA treatment records from February 2017 show a prescription for a cane. A January 2017 VA treatment record shows that a medical provider ordered a brace for the Veteran's knee arthritis. Thus, the record indicates that the Veteran has been prescribed both a brace and a cane for ambulation. Given the above, the December 2020 VA examination is insufficient to address the updated rating criteria. The record is unclear as to whether the Veteran's right knee condition represents a failed repair of a complete ligament tear. The Board notes that the record shows numerous prior knee surgeries and tears. Further, the Board is unclear as to whether the Veteran has patellar instability. The examiner is clear that the Veteran has moderate recurrent subluxation and lateral instability. The examination report also states that the Veteran has recurrent patellar dislocation. Thus, the Board must know whether the Veteran has a diagnosed condition involving the patellofemoral complex with recurrent instability, requiring a brace and cane. Remand is necessary to adequately address the updated rating criteria. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA knee examination to determine the current symptoms, level of severity, and functional impairment associated with his right knee disability. The claims file should be reviewed by the examiner. All necessary tests should be performed, and the results reported. Specifically, the examiner must address the updated criteria under DC 5257. The examiner must: a) Indicate whether the Veteran's right knee condition constitutes a "failed repair" given his multiple prior surgeries. b) Indicate whether the Veteran has been prescribed a cane or brace. c) Indicate whether the Veteran has a diagnosed condition involving the patellofemoral complex with recurrent instability. d) Indicate whether the Veteran has patellar instability. The examiner must include rationale with all opinions, citing to supporting factual data and medical principles, as deemed appropriate. 2. After completion of the above, review the expanded record, including any evidence entered since the most recent supplemental statement of the case, and determine whether the benefits sought may be granted. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. A reasonable period should be allowed for response before the appeal is returned to the Board. Roya Bahrami Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Baker, 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.