Citation Nr: 1613418 Decision Date: 04/01/16 Archive Date: 04/13/16 DOCKET NO. 09-13 596 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for right knee arthritis for the period prior to June 25, 2008. 2. Entitlement to a disability rating in excess of 30 percent for right knee total knee arthroplasty for the period from August 1, 2009. 3. Entitlement to a disability rating in excess of 10 percent for instability of the right knee. 4. Entitlement to a disability rating in excess of 10 percent for degenerative arthritis of the left knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD L. Connor, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1971 to July 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in September 2012. A transcript of that hearing is associated with the claims file. In a decision dated in February 2015, the Board denied increased ratings for the Veteran's right and left knee disabilities under the currently assigned diagnostic codes but granted a separate 10 percent evaluation for mild instability of the right knee. The Veteran appealed this decision to the U.S. Court of Appeals for Veterans Claims (Court). In a December 2015 joint motion for remand (JMR) filed with the Court, the parties (the Veteran and the VA Secretary) requested that the Board decision be vacated and remanded, insofar as it denied higher ratings for the right and left knees; a January 2016 Court order granted the JMR. The issue of entitlement to a total disability evaluation based on individual unemployability (TDIU) was Remanded by the Board in February 2015. Development of that issue has commenced and jurisdiction over the TDIU claim remains with the AOJ. However, the AOJ is cautioned to consider the TDIU claim in light of the development in this Remand. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND At the outset, and as astutely noted by the Parties in the JMR, the Veteran's left knee disability is currently rated as 10 percent disabling from May 2003. The Board erroneously characterized the claim as one for a rating in excess of 20 percent in the February 2015 decision and an earlier January 2014 remand. The Board's analysis in the February 2015 confounded the matter further by focusing the criteria to assign a rating greater than 20 percent. However, a review of that decision and record makes it clear that there was no intent at that time to grant a 10 percent rating. The issue has been restated to adequately reflect the issue on appeal. The Board sincerely apologizes for any confusion and inconvenience this oversight may have caused. In the December 2015 JMR, the Parties also agreed that the VA failed to provide the Veteran with an adequate medical examination. The Veteran has been afforded two VA examinations regarding his knee disabilities. However, the Parties pointed out that the most recent examiner failed to adequately address how weight-bearing affects the functional impairment of the Veteran's service-connected knee disabilities. An additional VA examination and opinion was ordered to fully address the current severity of the Veteran's knee disabilities. The December 2015 JMR further noted that the Board's February 2015 decision was unclear as to the appeal period. Upon a closer review of the record, the Board finds that the Veteran's claim for an increased rating was submitted in May 2005. He was in receipt of a 20 percent rating for right knee arthritis with partial meniscectomy under Diagnostic Code 5010-5258. He underwent a total knee replacement in June 2008. A 100 percent rating was then assigned under Diagnostic Code 5055 from June 25, 2008 until August 1, 2009. From August 1, 2009, a 30 percent rating was assigned under Diagnostic Code 5055. In other words, a staged rating was created. Such is reflected in the title page. Accordingly, the case is REMANDED for the following action: 1. After obtaining any necessary releases, obtain all VA and private treatment records, to specifically include any pertaining to treatment and/or evaluation of right or left knee conditions, dated from April 2014 to the present. 2. Thereafter, schedule the Veteran for appropriate VA examination(s) to address the current severity of the service-connected right knee and left knee conditions. For each specific examination (or examination segment), all indicated tests and studies, such as X-rays, should be accomplished, and the results reviewed before the final report is completed. Any opinion must include a complete rationale for the conclusions reached. The claims file must be available to the examiner in conjunction with the examination(s). Regarding the Veteran's right and left knees, the examiner should evaluate the current manifestations and severity of the Veteran's service-connected right knee total knee arthroplasty and left knee degenerative arthritis. Describe all symptoms caused by the service-connected knee disabilities, as well as the severity of each symptom. In this regard, range of motion studies should be conducted and the examiner should also address whether the right and/or left knee exhibits weakened movement, excess fatigability, or incoordination and any effect of weight-bearing on either knee. If feasible, these determinations should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. Additionally, the examiner should express an opinion on whether pain could significantly limit functional ability during flare-ups or when the knee is used repeatedly over a period of time. This determination should also, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. The examiner should state whether there is any instability /subluxation of the either knee and, if so, the severity of such should be described as slight, moderate, or severe. The examiner must discuss the underlying medical rationale for all opinions or conclusions expressed. If an opinion cannot be made without resorting to speculation, the examiner must state this and specifically explain why such opinion cannot be provided without resort to speculation. 3. Then, the RO should review the claims for entitlement to a disability rating in excess of 20 percent for right knee arthritis for the period prior to June 25, 2008, a disability rating in excess of 30 percent for right knee total knee arthroplasty for the period from August 1, 2009, a disability rating in excess of 10 percent for instability of the right knee, and a disability rating in excess of 10 percent for degenerative arthritis of the left knee. If the decision is less than a full grant of the benefits sought, the Veteran and his representative should be provided with a supplemental statement of the case and given an opportunity to respond, before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).