Citation Nr: 22017708 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 15-02 145 DATE: March 25, 2022 REMANDED Entitlement to an evaluation in excess of 10 percent for left knee chondromalacia patella and degenerative joint disease based on limitation of extension is remanded. Entitlement to a compensable evaluation for left knee chondromalacia patella and degenerative joint disease based on limitation of flexion is remanded. Entitlement to an evaluation in excess of 10 percent for right knee chondromalacia patella and degenerative joint disease is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1979 to October 1986. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. In August 2018, the Board remanded the case for further development. The case was subsequently returned to the Board for appellate review. During the pendency of the appeal, in an April 2020 rating decision, the AOJ granted service connection for degenerative arthritis of the left knee, based on limitation of flexion, and assigned a noncompensable evaluation, effective from January 13, 2020. The AOJ also granted service connection for residual surgical scars for the left and right knees and assigned separate noncompensable evaluations, effective from January 13, 2020. In an August 2020 decision, the Board, in pertinent part, denied an evaluation in excess of 10 percent for the left knee disability based on limitation of extension; denied a compensable evaluation for the left knee disability based on limitation of flexion; and denied an evaluation in excess of 10 percent for the right knee disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In May 2021, the Court granted a Joint Motion for Partial Remand (Joint Motion) and vacated the August 2020 Board decision with respect to the denial of increased ratings for the left and right knee disabilities based on limitation of motion. However, the portion of the Board's decision which granted separate 10 percent evaluations for left and right knee meniscal tears was not disturbed. In the Joint Motion, the parties agreed that the Board erred in relying on an inadequate July 2011 VA examination. Specifically, the parties found that, although the July 2011 VA examiner noted flare-ups, the examiner did not indicate whether and at what point during range of motion testing that the Veteran experienced any limitation of motion that was specifically attributable to pain, pursuant to Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011); see also Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). In addition, the parties found that the July 2011 VA examiner did not comply with Correia v. MacDonald, 28 Vet. App. 158, 165 (2016), which required that the joints involved be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. Although there have been subsequent examinations, the parties indicated that the Board should determine whether a retrospective opinion is needed. Moreover, despite subsequent testing having been performed during a January 2020 VA examination, the parties to the Joint Motion noted that a July 2018 VA examiner did not perform right or left knee joint instability testing. For these reasons, the Board finds that a remand is necessary to obtain an additional VA examination that includes joint stability testing and a retrospective opinion to address Mitchell, Sharp, and Correia. The Board further notes that, during the pendency of this appeal, VA issued revised schedular criteria for rating musculoskeletal disabilities, including under 38 C.F.R. § 4.71a, Diagnostic Codes 5010 and 5257, which became effective February 7, 2021. Diagnostic Code 5257 governs lateral instability, recurrent subluxation, and patellar instability. Where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the Veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. As such, VA must consider the claims pursuant to the former and revised regulations during the course of this appeal. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). The matters are REMANDED for the following action: 1. The Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service-connected left and right knee disabilities. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the right and left knee disabilities under the rating criteria. In particular, the examiner should provide the range of motion in degrees of the right and left knees. In so doing, the examiner should test the Veteran's range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors (including any additional loss of motion). The examiner should also discuss any additional functional impairment that occurs during flare-ups, including any additional limitation of motion, and after any repeated use over time. To the extent possible, he or she should address the frequency, duration, characteristics, and severity of flare-ups (through the examination findings, review of the medical records, and/or history provided by the Veteran). The examiner is specifically requested to estimate as to degrees of range of motion lost during flare-ups and/or with repeated use. If the examiner is unable to provide an opinion as to functional loss, he or she must provide an explanation in the report. Further, the VA examiner should comment as to whether range of motion measurements for active motion, passive motion, weight-bearing, and/or nonweight-bearing and any functional loss during flare-ups can be estimated for the July 2011 VA examination. If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should clearly explain so in the report. In addition, examiner should indicate whether there is any ankylosis or dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. He or she should also address whether the Veteran has recurrent subluxation or lateral instability. The examiner should further state whether the Veteran has any impairment of the tibia and fibula. The examiner should state whether the Veteran has a sprain, incomplete ligament tear, or complete ligament tear causing persistent instability and whether a medical provider has prescribed an assistive device (e.g., cane(s), crutch(es), walker) and/or bracing for ambulation. It should be noted whether the condition has been repaired, unrepaired, or has a failed repair. The examiner should further indicate whether the Veteran has patellar instability involving the patellofemoral complex with recurrent instability after surgical repair that has required a prescription from a medical provider for a brace, cane, and/or walker. It should be noted that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). If the examiner determines that the Veteran does not have recurrent subluxation, lateral instability, or patellar instability, he or she should provide an explanation and address the Veteran's reports of knee instability, giving way, and the use of a knee brace. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. The agency of original jurisdiction (AOJ) should ensure that the examination report complies with the preceding directives and conduct any other development as may be indicated. 3. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the issues on appeal. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC), which includes consideration of the revised rating criteria effective February 7, 2021, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Osegueda, 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.