Citation Nr: 21040939 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 19-00 179A DATE: July 7, 2021 REMANDED Entitlement to an initial compensable rating for left knee scars for the period prior to February 12, 2020, and in excess of 10 percent thereafter is remanded. Entitlement to a rating in excess of 10 percent for left knee degenerative arthritis during the period from May 22, 2014 to July 31, 2015 (excluding periods when a temporary total rating is in effect), and in excess of 40 percent thereafter is remanded. Entitlement to a rating in excess of 20 percent for left knee instability is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1998 to July 1998. This matter came before the Board of Veterans Appeals (Board) on appeal from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). An August 2019 Board decision reopened the claim for service connection for an acquired psychiatric disability and a right knee disability, denied a temporary total rating for left knee degenerative arthritis, and remanded the issues of service connection for psychiatric and right knee disabilities and increased ratings for left knee instability, left knee degenerative arthritis and left knee scars for further development. An April 2020 rating decision granted service connection for right knee osteoarthritis. As this constituted a complete grant of the benefit sought on appeal for that issue, it is not before the Board. The decision also granted a 10 percent rating for left knee surgical scar, effective February 12, 2020. As higher ratings for this disability are assignable during the relevant period and the Veteran is presumed to seek the maximum available benefit, the issue of an increased rating for the left knee scar remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). A January 2021 rating decision granted service connection for posttraumatic stress disorder. As this constituted a complete grant of the benefit sought on appeal for that issue, it is not before the Board. The decision also granted a noncompensable rating for left knee limitation of flexion, effective February 12, 2020. As higher ratings for this disability are assignable during the relevant period and the Veteran is presumed to seek the maximum available benefit, the issue of an increased rating for the left knee remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board notes that the Veteran filed an April 2021 VA form 10182 appealing the April 2020 rating decision as it pertained to the rating for her right knee disability, the effective date for service connection for a painful surgical scar, and the rating for a painful surgical scar. However, as those issues have been appealed in the Appeals Modernization Act (AMA) system, they are not the subject of the current Legacy system appeal and will be discussed in a separate decision at a later date. 1. Entitlement to an initial compensable rating for left knee scars prior to February 12, 2020, and in excess of 10 percent thereafter The August 2019 Board decision found that the record was unclear regarding both number of the Veteran's scars and whether they were unstable. The decision noted the Veteran's reports that one of her left knee scars required a skin graft and found this information conflicted with the findings of the January 2015, July 2015, and July 2017 VA examiners. Therefore, the issue was remanded to obtain a VA scars examination, and the remand directives specifically asked the examiner to clarify whether the Veteran's scars required a skin graft as reported by the Veteran. A VA scar examination was provided in February 2020, however while the examiner found that the Veteran had 5 left knee scars and also found that they were not unstable upon inspection, the report is silent for the requested discussion regarding whether any of the scars required a skin graft. Remand for a new examination is therefore required to obtain the requested opinion and clarify whether the Veteran's left knee scars required a skin graft. 2. Entitlement to a rating in excess of 10 percent for left knee degenerative arthritis during the period from May 22, 2014 to July 31, 2015 (excluding periods when a temporary total rating is in effect), and in excess of 40 percent thereafter 3. Entitlement to a rating in excess of 20 percent for left knee instability The August 2019 Board decision requested a new VA examination regarding the severity of the Veteran's left knee disability as the prior VA examinations of record were found to be inadequate for review. A VA knee examination was provided in February 2020. However, while the examiner found pain on both flexion and extension when conducting range of motion testing, the examiner did not note the point in the range of motion when pain began. This does not allow the Board to properly assess the functional impairment caused by the disability. Examinations for joint disabilities generally must include range of motion measurements. See Correia v. McDonald, 28 Vet. App. 158, 169 (2016). In conducting these measurements, the examiner should note when any incoordination, weakened movement, or excess fatigability sets in. Id. The examiner should also note whether pain on motion is present, and, if so, where in the range of motion the pain sets in and whether that pain causes functional loss. Id. Remand is therefore required to provide the Board with an accurate picture of the level of functional impairment associated with the Veteran's left knee disability. The Board also notes that effective February 7, 2021, the Diagnostic Codes applicable to knee disabilities have changed. As pertinent to this appeal, Diagnostic Code 5257 now requires additional evidence, such as type and treatment, to rate knee instability if such is present. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 20202) (to be codified at 4.71a, Diagnostic Code 5257). The Board's review indicates that the VA examinations of record do not contain the evidence required to rate knee instability under the new regulations. Upon remand, the knee examination should be conducted in such a way that it includes findings consistent with the new requirements of Diagnostic Code 5257. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA scars examination with an appropriate provider to determine the current level of severity of her service-connected left knee scars. The examiner should review the file and provide a complete rationale for all opinions expressed. The examiner should specifically address the number of the Veteran's left knee scars, whether they are painful, and whether any scars required a skin graft as reported by the Veteran in a January 2018 statement. If the examiner finds that any scar required a skin graft, this fact should be specifically discussed when determining whether any of the Veteran's scars are unstable. 2. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his left knee disability. The claim file should be made available to and reviewed by the examiner and the examination report should state a review of the file was completed. All findings should be reported in detail. The examiner should identify all left knee pathology found to be present. The examiner should conduct 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. The knee joints should also be tested for instability and any instability found should be noted, to include the type of instability and treatment received for the same, if any. Findings pertaining to knee instability should comply with the newly enacted Diagnostic Criteria 5257 effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 4.71a, Diagnostic Code 5257). 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. If pain is noted, the point during range of motion at which pain starts must be clearly indicated. 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. 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). 3. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Arnold 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.