Citation Nr: 22014263 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 14-32 565 DATE: March 12, 2022 REMANDED Entitlement to a rating in excess of 10 percent prior to August 23, 2021 and in excess of 50 percent thereafter for right knee arthritis (based on limitation of extension), including whether a reduction from 40 percent to 10 percent effective May 2, 2014 was proper, is remanded. Entitlement to a rating in excess of 30 percent for right knee instability is remanded. Entitlement to a compensable rating for right knee limitation of flexion is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1971 to July 1975. The Department of Veterans Affairs (VA) is grateful for his service. The Veteran testified before the undersigned Veterans Law Judge at a September 2017 hearing. A transcript of the hearing is of record. The Veteran was previously examined for his right knee disability in August 2013 and September 2015. In May 2018, the Board of Veterans Appeals (Board) remanded the claim for additional development, including examination. The Board then noted that in a March 2018 brief the Veteran's authorized representative asserted that the proposed reduction was inextricably intertwined with the contention, then voiced, that Veteran should be afforded a separate rating for limitation of flexion under Diagnostic Code 5260, in addition to the rating assigned for limitation of extension under Diagnostic Code 5261. See 38 C.F.R. § 4.71a. The representative also contended that the Veteran's previously assigned 40 percent rating for limitation of extension should be restored. The Board then agreed that any appropriate current rating for the knee was at issue, so as to avoid piecemeal adjudication. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The Board then remanded the appeal for consideration of the reduction and associated rating issues. In July 2021, the Board remanded the appeal again based on failure of the examiner upon remand to comply substantially with remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). Following further examination in August 2021, by a December 2021 rating decision, the RO granted an increased rating to 50 percent for right knee arthritis effective August 23, 2021, and granted a separate 30 percent rating from August 23, 2021 based on right knee instability. In a supplemental statement of the case (SSOC) in December 2021, the RO found the reduction from 40 to 10 percent for right knee arthritis effective May 1, 2014 proper, and then also found that an evaluation for right knee arthritis greater than 10 percent prior to August 23, 2021, and greater than 50 percent from that date, was not warranted. The issues considered on appeal are accordingly now styled as listed above. 1. Entitlement to a rating in excess of 10 percent prior to August 23, 2021 and in excess of 50 percent thereafter for right knee arthritis (based on limitation of extension), including whether a reduction from 40 percent to 10 percent effective May 2, 2014 was proper, is remanded. 2. Entitlement to a rating in excess of 30 percent for right knee instability is remanded. 3. Entitlement to a compensable rating for right knee limitation of flexion is remanded. As noted above, the issues here considered on appeal are for the right knee disability, and are all on appeal so as to avoid piecemeal adjudication. Harris, 1 Vet. App. at 183. Regrettably, the obtained VA examination in August 2021 is inadequate because the examiner failed to substantially comply with the Board's remand instructions. The examiner entirely failed to note and consider the discrepant presentations and findings as observed by the Board to be reflected in prior examination and treatment records and hearing testimony, instead relying apparently with little question on the statements and presentations of the Veteran, without consideration of associate questions of impaired credibility and the need to consider more objective evidence. (The RO then accepted these deficient findings by the August 2021 examiner as the substantial basis for then newly assigned ratings by its December 2021 rating actions.) The Board, accordingly, requires a new examination by a different examiner, in order to substantially comply with the Board's prior remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). The matters are REMANDED for the following actions: 1. Afford the Veteran and his authorized representative the opportunity to submit additional evidence or argument in furtherance of his claims. 2. Obtain and associate with the claims file any VA treatment and evaluation records not yet associated with the record. 3. Thereafter, obtain a new in-person examination of the Veteran to address the nature and severity of his right knee disabilities both currently and retrospectively over the claim period. This must be conducted by an examiner other than the ones who conducted the October 2019, June 2020, and August 2021 VA examinations, as these examiners failed to follow clearly provided Board remand instructions. The examiner should be advised that the current examination is required because prior examiners in October 2019, June 2020, and August 2021 failed to follow remand instructions. The examiner must also document and consider the Veteran's own statements regarding his disability, since a layperson is competent to address symptoms as experienced and his recollections of past history and treatment. If the examiner has reason based on other evidence of record or medical knowledge to question the Veteran's self-reported history, the examiner should so state and provide a complete explanation why this is so. Based on review of the record and examination of the Veteran, the examiner must provide opinions that respond to the following: (a) The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to each identified right knee disability alone and discuss the effect of each right knee disability on any occupational functioning and activities of daily living. (b) In so doing, the examiner should note the VA examination of the right knee in September 2015, when there was a clear discrepancy between demonstrated and incidentally observed range of motion of the knee, leading to questions about the reliability of self-demonstrated or subjectively reported symptoms of disability of the knee. The examiner should take care to ascertain actual impairment of the knee, rather than assertions or demonstrations of impairment which may not be supported by objective findings. (c) Please describe all symptoms and manifestations of the Veteran's service-connected right knee disability, as well as all such symptoms and manifestations of any conditions of his non-service-connected left knee. This should also include any additional symptoms found that are not listed in the rating criteria. Describe the degree of severity of all impairments found and their impact on function. (d) The examiner must also specifically address the Veteran's assertion at his September 2017 hearing that his knee disability had traveled up to his hip, as well as his report at that hearing that he had fallen as a result of his right knee buckling, and that this resulted in his fracturing his ankle. The examiner is to note the Veteran's report at the hearing that doctors contended that it was impossible that his knee could have buckled as he had alleged. In this regard, the examiner should review the Veteran's vocational rehabilitation record, which includes an October 2012 counseling record reflecting a significant history of alcohol use including significant daily alcohol intake, as a potential alternative basis for the Veteran's reported fall and resulting past ankle fracture. The examiner should also review treatment records reflecting self-reported ongoing significant daily alcohol consumption. The examiner should also review a June 2020 vestibular disorder examination report which also informs of questions of blackouts or injuries potentially associated with episodes of amaurosis fugax and/or alcohol use. The examiner should explicitly consider alternative causes for any reported falls. (e) Please provide assessments of how the right knee disability has changed between 2013 and the present, including any intervals of greater or lesser impairment associated with arthritis, limitation of motion in flexion and extension, and instability. These assessments should be based to the extent feasible on the most credible evidence of record. Thus, to the extent not credible, the Veteran's reports and presentations should not be relied upon, more objective evidence should be used, and the examiner should explain his or her assessments on these credibility issues. In so doing, the examiner should specifically address the reliability of the findings and conclusions of prior knee examiners in August 2013, September 2015, October 2019, June 2020, and August 2021. (f) The examiner must provide a complete explanation, supported by facts found and medical knowledge, for all opinions and conclusions provided. This may include citing to relevant evidence, supporting factual data, medical literature, and prior medical opinions, as appropriate. (Continued next page) 4. Thereafter, readjudicate the issues on appeal. 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.