Citation Nr: 22014908 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 14-31 870A DATE: March 15, 2022 ORDER Entitlement to a separate 10 percent rating for right knee instability, from January 6, 2010, is granted. Entitlement to a separate 10 percent rating for left knee instability, from January 6, 2010, is granted. REMANDED Entitlement to a rating in excess of 10 percent for right knee degenerative arthritis (right knee condition), from January 6, 2010 to November 28, 2021 is remanded. Entitlement to a rating in excess of 10 percent for left knee degenerative arthritis (left knee condition), from January 6, 2010 to November 28, 2021 is remanded. Entitlement to a rating in excess of 30 percent for a right knee condition, beginning November 29, 2021 is remanded. Entitlement to a rating in excess of 20 percent for a left knee condition, beginning November 29, 2021 is remanded. Entitlement to an initial rating in excess of 10 percent for right knee instability is remanded. Entitlement to an initial rating in excess of 10 percent for left knee instability is remanded. FINDING OF FACT The Veteran's right and left knee conditions manifested in no less than slight instability from January 6, 2010. CONCLUSIONS OF LAW 1. The criteria for entitlement to a separate rating for right knee instability, from January 6, 2010, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.21, 4.71a, Diagnostic Code 5257. 2. The criteria for entitlement to a separate rating for left knee instability, from January 6, 2010, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.21, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from April 1968 to March 1970. The Board remanded the matter for further development in November 2021. In March 2022, during the pendency of the appeal, the agency of original jurisdiction (AOJ) granted increased ratings of 30 percent for the right knee and 20 percent for the left knee, effective November 29, 2021. The decisions constitute as partial grants of the benefits sought on appeal; therefore, the rating claims remain on appeal and are under consideration by the Board. See AB v. Brown, 6 Vet. App. 35 (1993). New evidence has been added to the record since the issuance of the January 2020 supplemental statement of the case. The Veteran did not waive AOJ review of new evidence. The decision herein partially grants the Veteran's appeal and remands the remaining appeals; therefore, there is no prejudice to the Veteran due to the Board proceeding because the AOJ will have an opportunity to review the new evidence upon the remand. As an initial matter, the Veteran has not reasonably raised a claim for a total disability rating due to individual unemployability in conjunction with the increased rating claims for the bilateral knee conditions. Rice v. Shinseki, 22 Vet. App. 447 (2009). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. As noted below, the Board has remanded claims concerning the Veteran's underlying bilateral knee conditions; both rated as 10 percent disabling prior to November 29, 2021; the right knee rated as 30 percent disabling afterwards; and the left knee rated as 20 percent disabling after. This remand, however, does not preclude the Board from addressing the question of whether separate evaluations are warranted for instability. See VAOPGCPREC 9-98 (August 14, 1998). The Board does note the Veteran provided lay testimony that he experiences feelings of knee instability. The Veteran reported giving way in the May 2010 VA examination. In December 2016 VA treatment records, the Veteran reported his knees give out occasionally. In the July 2019 VA examination, the Veteran reported his knees giving out. The Board notes the record is negative for any objective medical findings of left knee instability. Affording the Veteran the benefit of the doubt without substantiating objective medical evidence of instability, the Board finds the Veteran is entitled to separate 10 percent ratings due to slight bilateral knee instability beginning January 9, 2010, the date of claim. In making this determination, the Board is aware that, effective February 7, 2021, VA amended the regulations pertaining to the evaluation of disabilities of the musculoskeletal system, including those of the knee. 85 Fed. Reg. 76460 (Nov. 30, 2020). These rating changes are focused on objective knee findings. However, the Board here has applied the previous version of Diagnostic Code 5257, which applies throughout the pendency of the appeal, in making a finding of slight instability and assigning 10 percent evaluations. The rating criteria change, therefore, does not preclude a continued 10 percent evaluation beyond February 7, 2021. Accordingly, separate 10 percent evaluations are warranted for instability of the right and left knees beginning January 6, 2010. To this extent only, the appeals are granted. The question of whether even higher evaluations are warranted will be addressed on remand. REASONS FOR REMAND In the Reasons for Remand of the prior November 2019 remand, the Board noted that the March 2018 and July 2019 VA examinations were inconsistent with the Veteran's extensive treatment records. Specifically, the examinations failed to address the Veteran's documented history of bilateral meniscus tears. See February 2014 VA examination; December 2016 VA treatment records; July 2017 VA treatment records. The Board notes that the VA examinations in January 2020 and January 2022 once again provided incorrect information regarding the Veteran's history of a meniscus tear. Additionally, the January 2020 and January 2022 VA examiners failed to provide estimated range of motion measurements for the Veteran's knees after repeated use over time and due to flare-ups. Accordingly, remand for a new examination is warranted. See Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). As a reexamination of the Veteran's knees will also surely reveal findings relevant to instability, the question of whether evaluations in excess of 10 percent for instability are warranted will be deferred on remand pending the examination findings. The matters are REMANDED for the following action: The AOJ should schedule the Veteran for a VA examination for his service-connected bilateral knee disability, with a qualified medical examiner who has reviewed the claims file in conjunction with the examination. The most current Disability Benefits Questionnaire must be employed, and all relevant findings indicated in that questionnaire must be addressed, to include the Veteran's history of diagnosed meniscal tears. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The AOJ should review the VA examiner's opinion and ensure it includes an adequate rationale for the assessment of the Veteran's right knee under the rating criteria in effect prior to February 7, 2021 as well as the revised rating criteria effective February 7, 2021. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. N. Quarles, 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.