Citation Nr: 22015408 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 15-20 011A DATE: March 17, 2022 REMANDED Entitlement to a compensable rating for left knee instability prior to September 25, 2013, and to a rating in excess of 10 percent thereafter is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from April 1994 to June 1997. This case comes on appeal of a May 2013 rating decision. The Veteran filed the present claim as one of entitlement to an increased rating for a left knee disability. The claim came before the Board in September 2020. At that time, the Board granted a rating of 10 percent, but no higher, as of September 25, 2013, for left knee instability under 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Board also issued decisions regarding ratings of the Veteran's left knee disability under Diagnostic Codes 5261, 5260, and 5258, as well as for a left knee scar under 38 C.F.R. § 4.118, Diagnostic Code 7805. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In August 2021, the Court approved a joint motion for remand (JMR) agreed upon between the Veteran and the Secretary regarding the Board's decision as it pertained to a rating under Diagnostic Code 5257. On that matter, the parties agreed that the Board had erred by failing to address the Veteran's lay testimony regarding the frequency with which his knee gave out. Notably, the parties also agreed not to address the Board's decisions regarding evaluations of the Veteran's left knee disability under the other Diagnostic Codes discussed above, and instead requested that an appeal for those issues be dismissed. Accordingly, the only issue before the Board is the one addressed below. Entitlement to a compensable rating for left knee instability prior to September 25, 2013, and to a rating in excess of 10 percent thereafter is remanded. Remand is necessary to ensure a VA examination that adequately addresses the entirety of the Veteran's symptoms, to include those discussed in lay testimony. As the parties noted in the JMR, the Veteran underwent a VA examination in January 2020. At that time, the examiner reported a history of slight recurrent subluxation and slight lateral instability in the left knee, but also reported no current joint instability. However, in the Veteran's September 2013 notice of disagreement, as well as October 2018 testimony to a decision review officer, the Veteran reported that his knee would "give out" on him approximately once a day. Based on the most recent examination, it is unclear whether the examiner considered this lay observation in addressing the Veteran's knee instability. Moreover, it is unclear whether the Veteran's description of his knee giving out is, in fact, related to instability or is due to such factors as painful motion and/or locking, pain, and effusion to the jointmanifestations of the disability that are considered under other Diagnostic Codes and not related to instability. Thus, on remand, additional examination is necessary to clarify the current severity of the Veteran's left knee disability, with specific attention given to instability, to include consideration of the Veteran's lay testimony. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination of the current severity of his left knee disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. (A) All indicated tests should be performed, including range of motion findings expressed in degrees and in relation to normal range of motion; (B) The examination must include testing results of joint pain on both active and passive motion, and in weight-bearing and non-weight bearing. The examiner should assess where pain begins on the Veteran's initial range of motion and upon repetitive testing. If such testing cannot be completed, an explanation should be provided as to why this is so. (C) The examiner must also estimate any functional loss in terms of additional degrees of limited motion of the left knee experienced during flare-ups and repetitive use over time. If the examiner cannot provide this estimate without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran's description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). In providing this evaluation, the examiner should specifically address the extent of the Veteran's knee instability. In doing so, the examiner should consider the Veteran's prior lay testimony, to include the Veteran's September 2013 and October 2018 statements that his knee gives out approximately once per day. The examiner should consider this testimony in light of any objective physical testing and address whether the Veteran's competent description of his knee giving out is related to instability of the left knee or some other manifestation of the left knee disability. 2. Once the above development has been achieved, as well as any other development deemed necessary thereafter, readjudicate the appeal. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Giaquinto, 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.