Citation Nr: 21041496 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 14-26 318 DATE: July 9, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for repair of right knee medial meniscus tear and osteoarthritis is remanded. Entitlement to a disability rating in excess of 10 percent for painful right knee scar of medical joint associated with repair of right knee medial meniscus tear and osteoarthritis is remanded. Entitlement to a disability rating in excess of 10 percent for right knee instability is remanded. Entitlement to an earlier effect date for the grant of individual unemployability prior to August 24, 2018 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from May 1986 to May 14, 2002, and May 15, 2002 to September 2006. He was honorably discharged from his first period of active duty; but he was discharged under other than honorable conditions from his second period of service. This matter was initially before the Board in July 2018, where it was remanded for additional development. In December 2020, the Board remanded the claims on appeal for additional development. In a January 2021 rating decision, service connection was granted for a painful right knee scar, effective January 5, 2021, and rated as 10 percent disabling. Additionally, an earlier effective date of August 24, 2018 for individual unemployability was granted. In the December 2020 remand, the Board directed the VA examiner to obtain information from the Veteran as to the frequency, duration, characteristics, severity, or functional loss with any repetitive use or during any flare-ups. Additionally, as the Veteran had reported variable range of motion loss during the February 2019 VA examination, the examiner was to have the Veteran demonstrate the various motion loss ranges during exacerbations and translate such motion loss into degrees of motion loss. During the January 2021 VA examination for knee conditions, the VA examiner provided an estimation of the Veteran's range of motion and additional symptoms during flareups. However, they did not indicate the frequency or duration of the flare-ups. There is also no indication that the Veteran demonstrated his various motion loss ranges during exacerbations. During the February 2019 VA examination, the Veteran indicated that there were times when he could barely bend his knee at all. However, the January 2021 VA examiner estimated his range of motion during flare-ups at zero to 110 degrees and did not provide an explanation as to why the Veteran's earlier reports were inaccurate. Based on these facts, the Board finds that the RO did not substantially comply with the December 2020 remand directives. Consequently, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, the regulations pertaining to rating the musculoskeletal system including DCs 5000-5331 were amended, effective February 7, 2021. See 85 Fed. Reg. 76453, 76460 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes (DC) 5000-5331). The Veteran's right knee disabilities are rated under diagnostic codes that were affected by the February 7, 2021 amendments. The Board finds that a new VA examination is necessary to comply with the prior Board remand instructions and to assess the current severity of the Veteran's disabilities under the amended rating criteria. The claims for increased ratings for right knee instability and a painful right knee scar arose from the claim for an increased rating for a right knee disability. These issues could be affected by post-remand findings; consequently, these issues are inextricably intertwined with the right knee disability claim and must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Finally, the Board notes that the claim for an earlier effective date for individual unemployability could be affected by a decision on the claims for increased ratings for right-knee disabilities. Accordingly, the claim an earlier effective date for individual unemployability is inextricably intertwined with the other issues being remanded and must be remanded as well. Id. The matters are REMANDED for the following actions: 1. Provide the Veteran with a VA examination to assess the severity of his right knee disabilities. The claims file must be made available to and be reviewed by the examiner. After a thorough review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Elicit from the Veteran all signs and symptoms of his right knee disabilities with scar. In doing so, also obtain information from the Veteran (and the treatment records) as to the frequency, duration, characteristics, severity, or functional loss with any repetitive use or during any flare-ups. Please note the February 2019 VA examination wherein the Veteran self-reported variable range of motion loss depending on how strenuously the joint was used ranging from barely moving at all due to pain to having minimal range of motion loss. The examiner should have the Veteran demonstrates the various motion loss ranges during exacerbations and translate such motion loss into degrees of motion lost. (b) Full range of motion testing must be performed where possible. The knees should be tested in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in nonweight-bearing. If the examiner is unable to conduct the required testing in this case, he or she should clearly explain why that is so. If pain is found during the examination, the examiner should note when the pain begins. (c) In assessing functional loss, flare-ups and increased functional loss on repetitive use must be considered. The examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion. Please note the February 2019 VA examination wherein the Veteran self-reported variable range of motion loss depending on how strenuously the joint was used ranging from barely moving at all due to pain to having minimal range of motion loss. The examiner should have the Veteran demonstrates the various motion loss ranges during exacerbations and translate such motion loss into degrees of motion loss. 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 if unable to opine without speculation. Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). 2. Readjudicate the issues concerning right knee disabilities and the issue of entitlement to TDIU for the period prior to August 24, 2018 consistent with the date of claim for the right knee disability claim on appeal and the holding in Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Regional Office should consider whether referral of the claim for an earlier effective date for individual unemployability for extraschedular consideration by the Director of Compensation Services is warranted for the period prior to October 6, 2017. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, 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.