Citation Nr: 22005693 Decision Date: 02/02/22 Archive Date: 02/02/22 DOCKET NO. 14-04 460 DATE: February 2, 2022 REMANDED Entitlement to an initial disability rating in excess of 10 percent prior to August 16, 2018 and in excess of 20 percent thereafter for right knee instability is remanded. Entitlement to an initial disability rating in excess of 10 percent for right knee limitation of motion is remanded. REASONS FOR REMAND The Veteran served honorably on active duty with the United States Air Force from July 1968 to September 1982. The Veteran died in January 2021. The appellant is his surviving spouse, and she is recognized as the lawful substitute for the claims the subject of this appeal. See VA 21-0847 dated March 6, 2014; VA Correspondence dated April 12, 2014; see also 38 C.F.R. § 3.1010. In August 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board of Veterans' Appeals (Board). A transcript of the hearing is associated with the claims file. This case was recently before the Board in December 2017 and again in January 2020, when in each instance it was remanded for further development. The case now returns to the Board in substitution, following the Board's dismissal of the Veteran's appeal in March 2021 due to his death. 1. Entitlement to an initial disability rating in excess of 10 percent prior to August 16, 2018 and in excess of 20 percent thereafter for right knee instability is remanded. 2. Entitlement to an initial disability rating in excess of 10 percent for right knee limitation of motion is remanded. Regrettably, the appealed claims must be again remanded for reasons explained below. The Veteran was most recently examined for his right knee disabilities for compensation purposes in September 2020. At that examination, the Veteran's service-connected disability was noted to be characterized as "right knee injury, mild laxity, traumatic arthritis/right knee instability." The Veteran's self-reported difficulties with the knee were noted as, "Veteran reports recurrent knee pain, especially aching pain with flare-ups, which impact his ability to bear weight and do prolonged standing, walking." Range of motion upon examination was from zero to 65 degrees flexion and from 65 to zero degrees extension. The Veteran exhibited signs of pain during the examination, but range of motion following three repetitions was not decreased, and the examiner did not find that functional use of the knee due to pain resulted in decreased functioning equivalent to a reduced range of motion. The right knee exhibited normal strength in both flexion and extension. Range of motion, functioning, and strength in the contralateral left knee were normal. Right knee instability was exhibited, with normal anterior and posterior stability, but 1+ medial instability (zero to 5 millimeters - the lowest category of instability, as indicated in the examination report). Left knee stability was normal. The examiner noted the Veteran's reported regular use of a brace and constant use of a cane for his knee. The examiner assessed that the right knee disability affected work functioning by affecting the Veteran's ability to perform prolonged weight-bearing, standing, and walking. Following this examination, in November 2020, the Veteran submitted a written statement describing his right knee disability and its impact on his functioning which appears considerably more severe than his description of the disability and its impact as documented in the September 2020 examination report. The Veteran reported, "I can hardly move around as a result of my right knee"; "I have had numerous falls at home or while shopping due to my knee buckling." Significantly, he also then asserted that his knee instability which he characterizes in terms of a "positive pivot shift" was a category three, or the most severe category, and that the knee has been of this status since prior to 2011. The severity of the right knee disability as described by the Veteran in November 2020, including in particular the severity of instability and impact on functioning, thus appears considerably at odds with that reported or found only two months earlier in September 2020. The Veteran asserted that the degree of instability present dated to 2011, and hence is asserted to have been present at the time of the September 2020 examination (as well as at the time of prior examinations). The current claim period originates with the Veteran's submitted claim for increased rating for right knee disability received in March 2011. The Board accordingly concludes that remand is warranted for an addendum to address whether the Veteran's statements in November 2020 are consistent or inconsistent with findings upon VA knee examinations in May 2011, August 2018, and September 2020, as well as findings upon treatment. If inconsistent, an examiner must address the inconsistency and whether the Veteran's statements regarding the severity of his knee disability including instability are credible for disability in 2020 as well as for disability dating back to 2011, based on past examination findings as well as treatment records over the claim period. The matters are REMANDED for the following action: 1. Obtain an addendum to the September 2020 VA examination by that examiner or by another examiner qualified to address the nature and severity of a knee disability. The examiner is to be advised that the addendum is necessary because the Veteran submitted a written statement in November 2020 concerning the nature of his right knee disability and instability in that knee which appears to be at odds with his prior statements of record including at VA examinations as well as at odds with objective findings at VA examinations. The examiner should carefully review the claims file including the reports of VA examinations in May 2011, August 2018, and September 2020, as well as findings upon treatments and past statements by the Veteran, including hearing testimony in August 2017. Ask the examiner to address whether the Veteran's submitted statement in November 2020 addressing the severity, including instability, and impact on functioning of his right knee disability is consistent with past examination and treatment records, and whether the Veteran's contentions in the November 2020 statement are credible based on these past examination and treatment records. The examiner should in particular address whether the impairment of functioning and instability as described in the November 2020 statement are consistent with the right knee disability both in 2020 and retrospectively over the entire claim period, since the Veteran states in the November 2020 statement that the instability of the knee as described was present since before 2011, and hence he alleged in the November 2020 statement that the instability as described was present for the entire claim period from 2011 to the present. The examiner should provide a complete explanation for all opinions expressed. (Continued next page) 2. Thereafter, readjudicate the appealed claims. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechter 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.