Citation Nr: 22015571 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 17-54 131 DATE: March 18, 2022 REMANDED Entitlement to a disability rating in excess of 10 percent for limitation of motion of the left knee prior to November 9, 2016, is remanded. Entitlement to a disability rating in excess of 30 percent for limitation of motion of the left knee from November 9, 2016, is remanded. Entitlement to a disability rating in excess of 10 percent for left knee instability is remanded. Entitlement to a disability rating in excess of 10 percent for limitation of motion of the right knee is remanded. Entitlement to a disability rating in excess of 10 percent for right knee instability is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1985 to March 2009. These matters come to the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO). Procedural history These matters were previously before the Board prompting a January 2021 decision wherein restoration of a 30 percent disability rating for limitation of motion of the left knee from August 21, 2019, was granted; a rating in excess of 10 percent for limitation of motion of the left knee was denied prior to November 9, 2016; a rating in excess of 30 percent for limitation of motion of the left knee was denied from November 9, 2016; a rating in excess of 10 percent for limitation of motion of the right knee was denied; a separate rating of 10 percent for left knee instability was granted; a separate rating of 10 percent for right knee instability was granted; service connection for sleep apnea was remanded; and an increased rating claim for status post right side rib fracture was remanded. Thereafter, the Veteran appealed to the U.S. Court of Appeals for Veterans Claims (CAVC or "the Court") and, in October 2021, the parties agreed to a Joint Motion for Partial Remand (JMPR) to vacate and remand only the issues of a rating in excess of 10 percent for limitation of motion of the left knee prior to November 9, 2016; a rating in excess of 30 percent for limitation of motion of the left knee from November 9, 2016; a rating in excess of 10 percent for limitation of motion of the right knee; a rating in excess of 10 percent for left knee instability; and a rating in excess of 10 percent for right knee instability. The parties agreed that the Court should not disturb restoration of a 30 percent disability rating from August 21, 2019, and the granting of separate ratings for right and left knee instability. The Court granted the JMPR in November 2021 and the matter has now returned to the Board for further consideration consistent with the terms of the JMPR. The Court dismissed all issues other than those addressed herein. As will be discussed in more detail below, the Board finds remand is necessary to afford the Veteran another VA examination. The Board notes additional evidence has been added to the claims file since the matter was certified to the Board, including a VA examination pertaining to the left knee. As these claims are being remanded herein, the RO will have the opportunity to review the additional evidence in the first instance. 1. Entitlement to a disability rating in excess of 10 percent for limitation of motion of the left knee prior to November 9, 2016, is remanded. 2. Entitlement to a disability rating in excess of 30 percent for limitation of motion of the left knee from November 9, 2016, is remanded. 3. Entitlement to a disability rating in excess of 10 percent for left knee instability is remanded. 4. Entitlement to a disability rating in excess of 10 percent for limitation of motion of the right knee is remanded. 5. Entitlement to a disability rating in excess of 10 percent for right knee instability is remanded. The Veteran contends he should be assigned higher disability ratings for his right and left knee limited motion and instability. The Board finds, in light of the JMPR, remand is necessary to obtain additional VA opinions. At the outset, the Board notes part of the parties' JMPR pertained to the duty to assist stating that the Board failed to ensure that VA satisfied the duty to assist in obtaining outstanding treatment records. Upon review, however, VA treatment records have since been obtained through March 2021. Thus, this portion of the JMPR has already been resolved. Should there be any additional VA treatment records since March 2021, the RO will be instructed to obtain them within the remand directives below. Of relevance to the periods on appeal, the Veteran underwent VA examinations to determine the severity of his left and right knee disabilities in March 2021 (which was not before the Board at the time of the January 2021 decision), August 2019, November 2017, and October 2016. VA treatment records note the Veteran took medication, both prescriptions and over the counter (as well as injections), to help control his knee pains. As highlighted in the JMPR, while medications were referenced in the 2019 and 2016 VA examinations, it is unclear whether the VA examiners discounted the ameliorative effects of the Veteran's medication, if any, when evaluating his knee symptoms. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). The Veteran's knee disabilities are evaluated under Diagnostic Code (DC) 5260 for limitation of leg extension which does not contemplate the ameliorative effects of medication and a higher level of disability could possibly be obtained when disregarding the ameliorative effects of any medication taken to treat the symptoms under this code. Thus, clarification is needed regarding the medications taken by the Veteran for his right and left knee disabilities throughout this period, the extent to which, if any, said medications impact his symptoms, and evaluation results without consideration of the noted ameliorative effects. Additionally, as noted in the parties' JMPR, the September 2016 VA examiner failed to provide an estimated ROM loss during flare-ups, opining that he would be unable to do so without mere speculation because functional loss over time or during flares would vary in intensity and severity. Without directly observing the functional impairment at the time of the flare, the examiner stated that he could not determine severity, effect on activities, and / or the degree of ROM loss. The Veteran, however, has provided information regarding his additional symptoms with repetitive use and during flare-ups, indicating further limitations on functional ability. Thus, as in Sharp, this September 2016 finding does not adequately depict additional functional loss. Sharp v. Shulkin, 29 Vet. App. 26, 32-33 (2017). There is no indication that the September 2016 VA examiner attempted to elicit such information from the Veteran and / or medical evidence nor is there an adequate rationale to explain why such an estimate would require mere speculation. As such, the Board finds a retrospective medical opinion is necessary in accordance with Sharp and in light of the parties' JMPR. Accordingly, upon remand, the VA examiner is asked to address and consider additional ROM loss during flare-ups based on the evidence of record in 2016 and the Veteran's lay statements, to the extent possible. Further, regarding instability, the Board notes the Veteran has been separately awarded ratings for right and left knee instability based on his lay statements and treatment records despite VA examinations of record finding instability was not present. The Veteran has endorsed relying upon braces during flare-ups and at other times. Most recently, the 2021 VA examiner noted these braces are physician prescribed. Thus, clarification is sought as to whether the Veteran experiences instability and to what extent. An opinion is necessary to determine whether the knee braces used by the Veteran are prescribed, and if so, whether they are specifically for instability. The Board notes the remaining portions of the JMPR pertaining to the Veteran's separate instability ratings will be addressed upon return to the Board. Based on the aforementioned, these claims are remanded for additional development. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records since March 2021. 2. After the above development, schedule the Veteran for a VA examination before an appropriate clinician to determine the severity of his right and left knee disabilities. 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. In so opining, the examiner is specifically directed to address and consider: - From 2016 to present, in consideration of the Veteran's treatment records referencing medications, the VA examinations of record, and any other medical evidence the examiner finds relevant to review in the claims folder, the examiner should opine, to the extent possible, the Veteran's limitations of his right and left knee disabilities since 2016 without considering the ameliorative effects of medication. In so opining, the examiner is directed to explain, to the extent possible, the ameliorative effects of the medication taken by the Veteran from 2016 to present and whether said effects would have impacted the VA examination results in 2016, 2017, 2019, and 2021. - From May 2016 to November 2017, in consideration of the Veteran's indicated right and left knee flare-ups reported in the September 2016 VA examination and any other medical evidence the examiner finds relevant to review in the claims folder, the examiner shall provide a retrospective opinion regarding the frequency and duration of any flare-ups. The examiner should specifically describe the severity, frequency, and duration of flare-ups; name the precipitating and alleviating factors; and estimate, per the Veteran, to what extent, if any, such flare-ups affect functional impairment from May 2016 to November 2017. In so opining, attention is invited especially, but not exclusively, to the September 2016 VA examination. The examiner shall describe any additional functional impairment and / or functional loss in connection with the flare-ups in terms of the degree of additional range of motion loss. If it is not feasible to determine, even by estimation, the extent to which the Veteran experienced additional functional loss during flare-ups without resorting to speculation, the examiner must provide an explanation for why this is so. - Regarding instability, the examiner is directed to specifically consider the Veteran's use of assistive devices, and clarify whether said devices, if any, are used for instability. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. 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). 3. After the above development, and any other development deemed necessary, readjudicate the claims. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.C. Allen, Associate 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.