Citation Nr: 22019737 Decision Date: 04/02/22 Archive Date: 04/02/22 DOCKET NO. 15-05 145 DATE: April 2, 2022 REMANDED The claim of entitlement to an initial rating higher than 40 percent for right knee chondromalacia patella and baker's cyst with degenerative joint disease (right knee disability) on the basis of limited extension (DC 5261) is remanded. The claim of entitlement to an initial rating higher than 10 percent prior to March 26, 2021, and higher than 40 percent thereafter, for left knee chondromalacia patella and baker's cyst with degenerative joint disease (left knee disability) on the basis of limited extension (DC 5261) is remanded. The claim of entitlement to an initial rating higher than 10 percent for right knee disability on the basis of recurrent subluxation or lateral instability (DC 5299-5257) is remanded. The claim of entitlement to an initial rating higher than 10 percent for left knee disability on the basis of recurrent subluxation or lateral instability (DC 5299-5257) is remanded. The claim of entitlement to an initial compensable rating for right knee disability on the basis of limited flexion (DC 5260) is remanded. The claim of entitlement to an initial compensable rating for left knee disability on the basis of limited flexion (DC 5260) is remanded. The claim of entitlement to a rating higher than 10 percent for right knee disability under DC 5299-5019 is remanded. The claim of entitlement to a rating higher than 10 percent for left knee disability under DC 5299-5019 is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1991 to September 1994. This appeal is from an April 2010 rating decision. Most recently, the Board remanded these claims in August 2020 for additional development. Since the remand, the Veteran was granted separate ratings for limited extension for the right knee, and for limited flexion for both knees. Thereafter, he filed a separate claim for an earlier effective date of the right knee extension rating, which the AOJ (agency of original jurisdiction) denied. The AOJ found that the request was a new claim, which was not the case, because the issue was already under appeal as part of this case. The Veteran then appealed the AOJ's denial to the Board, with a hearing request. That appeal was erroneously docketed, based upon the AOJ's erroneous finding. Once an appeal is pending under a certain avenue of review, it may not be concurrently reviewed under another avenue. 38 C.F.R. § 3.2500(b). The Veteran did not effectively opt this issue into the AMA (Appeals Modernization) pursuant to 38 C.F.R. §§ 3.2400(c)(2) and 3.2500(c)(2), and the erroneously docketed appeal has been removed from the docket. The Veteran was advised in a February 2022 letter. The Board notes that the issues under consideration in this case include the issue of whether a rating based on extension is warranted at any time since the claim was filed, in February 2010, and so his request will be considered. However, unfortunately, the Board finds that the most recently obtained VA examination reports, from March and August 2021, are not responsive to the Board's August 2020 remand directives, and remand is required for corrective action. The Board regrets this additional delay, but it is necessary in order to preserve the Veteran's due process rights. 1. The claim of entitlement to an initial rating higher than 40 percent for right knee chondromalacia patella and baker's cyst with degenerative joint disease (right knee disability) on the basis of limited extension (DC 5261) is remanded. 2. The claim of entitlement to an initial rating higher than 10 percent prior to March 26, 2021, and higher than 40 percent thereafter, for left knee chondromalacia patella and baker's cyst with degenerative joint disease (left knee disability) on the basis of limited extension (DC 5261) is remanded. 3. The claim of entitlement to an initial rating higher than 10 percent for right knee disability on the basis of recurrent subluxation or lateral instability (DC 5299-5257) is remanded. 4. The claim of entitlement to an initial rating higher than 10 percent for left knee disability on the basis of recurrent subluxation or lateral instability (DC 5299-5257) is remanded. 5. The claim of entitlement to an initial compensable rating for right knee disability on the basis of limited flexion (DC 5260) is remanded. 6. The claim of entitlement to an initial compensable rating for left knee disability on the basis of limited flexion (DC 5260) is remanded. 7. The claim of entitlement to a rating higher than 10 percent for right knee disability under DC 5299-5019 is remanded. 8. The claim of entitlement to a rating higher than 10 percent for left knee disability under DC 5299-5019 is remanded. The August 2020 Board remanded asked the VA examiner to discuss whether the Veteran's Q-angle of 22 degrees in both knees was related to his service-connected disability, which did not occur. The Board notes that the May 2010 VA examiner mentioned it in his examination findings, but did not provide any explanation of what it is or whether is related to his service-connected disability, and the Veteran has asserted that his increased Q-angle results in additional disability. The Board further notes the Veteran is diagnosed with bilateral knee meniscal tears. At the March 2021 VA examination, he complained of frequent effusion into his knee and episodes of locking. An April 2018 VA treatment record shows complaints of locking. However, the VA examiner indicated the Veteran had no symptoms related to torn meniscus, without explanation for rejecting the Veteran's reports, and without conducting any diagnostic testing. On remand, an updated examination must be conducted. The matters are REMANDED for the following action: 1. Associate updated VA treatment reports with the claims file. 2. After completion of the first directive, schedule the Veteran for an appropriate examination for a report on the current severity of the Veteran's bilateral knee disabilities. The examiner is asked to conduct a complete examination. The examiner is asked to provide an opinion on whether the increased Q-angle, noted at the December 2010 VA examination, is related to his service-connected disability. The examiner is asked to elicit from the Veteran a detailed history of his symptoms generally, and his symptoms during flares and after repetitive use, and to provide examples of his functional loss. The Veteran has complained of frequent effusion and locking. The examiner is asked to conduct the necessary testing to ascertain the presence of these symptoms, or if not, then explain why the Veteran's complaints of these symptoms did not prompt such testing. Range of motion testing is to be conducted, and the examiner is asked to provide opinions on additional functional loss during flares or after repetitive use in terms of lost range of motion. If unable to opine, please explain why the Veteran's statements were not helpful in that regard. All opinions are to be supported with explanation. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Gibson 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.