Citation Nr: 21042374 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 09-39 894 DATE: July 12, 2021 REMANDED Entitlement to a rating in excess of 10 percent for chondromalacia of the left knee prior to October 12, 2015 and classified as left knee arthritis with chondromalacia and limited motion from October 12, 2015, is remanded. Entitlement to a rating in excess of 20 percent for meniscal tear, left knee, from February 27, 2016 to November 21, 2018, is remanded. Entitlement to a rating in excess of 20 percent for left knee arthritis with chondromalacia and instability from February 27, 2016, is remanded. Entitlement to a rating in excess of 10 percent for chondromalacia of the right knee prior to October 12, 2015 and classified as right knee arthritis with chondromalacia and limited motion from October 12, 2015, is remanded. Entitlement to a rating in excess of 20 percent for meniscal tear, right knee, from February 27, 2016 to November 21, 2018, is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities is remanded. REASONS FOR REMAND These matters came before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned in a hearing at the RO in October 2014; a transcript is of record. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the bilateral knee and TDIU issues. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). In an April 2016 rating decision, a separate rating was granted for left knee chondromalacia with arthritis and instability, rated 20 percent disabling effective February 27, 2016, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5257. In an April 2019 rating decision, separate 20 percent ratings were assigned for meniscal tear, right and left knees, effective February 27, 2016 to November 21, 2018, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5258. Also in effect are separate 10 percent ratings for left and right knees chondromalacia/limitation of motion per 38 C.F.R. § 4.71a, Diagnostic Code 5014 (arthritis) and 5260. The ratings assigned to left knee instability and meniscal tear of the knees were assigned in contemplation of the February 27, 2016 VA examination. With regard to the left knee, there were objective findings of anterior instability (Lachman test) +1 and lateral instability +2. The examiner also checked the box indicating a meniscus (semilunar cartilage) condition with frequent episodes of joint pain and joint effusion on the right side, and meniscal tear and frequent episodes of joint pain and joint effusion on the left side. In November 2018, the Veteran underwent a VA examination wherein the examiner diagnosed bilateral knee arthritis with chondromalacia, limitation of motion. On joint stability testing of the left knee, anterior instability, posterior instability, medial instability, and lateral instability were normal per the examiner. The examiner checked the 'No' box with regard to whether he has a meniscus condition. It appears that this is the basis for the Agency of Original Jurisdiction (AOJ) assigning the meniscal tear ratings from February 27, 2016 to November 21, 2018; the ratings end the day before the November 22, 2018 C&P examination. In the August 2019 Board Remand, it was instructed that the examiner should provide an explanation for the inconsistent objective findings between the 2016 and 2019 examinations to ensure that the disability ratings assigned adequately compensate the Veteran for his disabilities of the right and left knees. In December 2019, the Veteran underwent a C&P examination wherein the examiner diagnosed knee meniscal tear and degenerative arthritis, and the examiner found that the meniscus tear was a progression of a previous diagnosis. However, the examiner checked the 'No' box with regard to whether he has a meniscus condition, and there are no objective findings for meniscal conditions. The examiner also found no history of recurrent subluxation or lateral instability, and joint stability testing was normal. Such examination did not address the inconsistent objective findings. In March 2021, the Board remanded the issues to afford the Veteran an examination with an orthopedic physician to assess the severity of his bilateral knee disabilities and to ensure that the disability ratings assigned adequately compensate the Veteran for his disabilities of the right and left knees. In April 2021, the Veteran underwent a C&P examination with an occupational medicine physician, not an orthopedic physician. The examiner was unable to account for the discrepancies in the February 2016, November 2018 and December 2019 C&P examination reports as it is outside the area of expertise of the examiner. The examiner was unable to provide an opinion as to whether the Veteran has sustained cartilage, semilunar, dislocated, with frequent episodes of locking, pain, and effusion into the joint and attempt to explain any discrepancy between the left and right knee meniscal tear findings in the February 2016 C&P examination versus the lack of meniscal tear findings in the November 2018 C&P examination and the meniscal tear diagnosis without any objective findings contained in the December 2019 C&P examination as it is outside the area of expertise of the examiner. The examiner was unable to comment on the Veteran's ability to function in an occupational environment for the period from January 1, 2009 or describe any functional impairment caused by his bilateral knee disabilities for the period from January 1, 2009, as the examiner believed the managing doctor of that time should be able to comment on this. As the examination does not comply with the prior Remand instructions, remand is necessary to afford the Veteran an examination with an orthopedic physician. The matters are REMANDED for the following action: 1. Schedule the Veteran for an orthopedic examination with an orthopedist to assess the severity of his left and right knee disabilities, and to account for the discrepancies in the February 2016, November 2018, December 2019, and April 2021 C&P examinations. The virtual folder should be made available to the examiner for review in conjunction with the examination. Any medically indicated special tests should be accomplished, and all special test and clinical findings should be clearly reported. The examination of the left and right knees should include range of motion studies. Regarding range of motion testing, the examiner should report the point (in degrees) at which pain is elicited, as well as whether there is any other functional loss due to pain, weakened movement, excess fatigability, incoordination, or flare-ups. These determinations must be expressed in terms of the additional limitation of motion in approximate degrees due to each functional factor that is present. The examiner should report on whether there is functional loss due to limited strength, speed, coordination or endurance. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight bearing. 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 perform stability testing, report whether there is instability or subluxation, and express an opinion as to the severity of such instability or subluxation. The examiner should comment on whether the Veteran has a prescription from a medical provider for a brace, cane, or walker due to recurrent instability. The examiner should attempt to explain any discrepancy between the left knee instability findings in the February 2016 C&P examination versus the lack of instability findings in the November 2018, December 2019, and April 2021 C&P examinations. The examiner should provide an opinion as to whether the Veteran has sustained cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint and attempt to explain any discrepancy between the left and right knee meniscal tear findings in the February 2016 C&P examination versus the lack of meniscal tear findings in the November 2018 C&P examination and the meniscal tear diagnosis without any objective findings contained in the December 2019 and April 2021 C&P examinations. The examiner should comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. The examiner should attempt to estimate additional loss of function during such flare-ups and such additional loss should be expressed in degrees of motion. The Court has held that an inability to observe a flare-up is an insufficient basis for not providing an estimate on additional functional limitation. The examiner is to provide a statement concerning how the left and right knee disabilities affect his functioning and activities. The examiner is asked to describe the types of limitations he would experience as a result of his left and right knee disabilities. The examiner should comment on the Veteran's ability to function in an occupational environment for the period from January 1, 2009, and describe any functional impairment caused by the service-connected bilateral knee disabilities for the period from January 1, 2009. The examiner must provide a comprehensive rationale for the opinions. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.W. Kreindler, 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.