Citation Nr: 1800811	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  12-22 693	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to increased disability rating for chondromalacia of the right knee with a history of periostitis, currently rated as 20 percent disabling.  

2.  Entitlement to a separate rating for instability of the right knee, rated as 10 percent disabling since February 21, 2017. 

3.  Entitlement to a total rating based upon individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	North Carolina Division of Veterans Affairs


WITNESSES AT HEARING ON APPEAL

The Veteran and H. B.

ATTORNEY FOR THE BOARD

M. Taylor, Counsel


INTRODUCTION

The Veteran served on active duty from July 1973 to March 1974. 

This matter comes before the Board of Veterans' Appeals (Board) from a March 2011 rating decision received from the Department of Veterans Affairs (VA) Regional Office (RO).  

In January 2015, the Board remanded the appeal to afford the Veteran a Travel Board hearing.  In July 2015, the Veteran testified at a Travel Board hearing.  

In a March 2016 decision, the Board restored the 20 percent rating assigned for chondromalacia of the right knee with a history of periostitis, and remanded the issues of entitlement to a rating in excess of 20 percent for chondromalacia of the right knee with a history of periostitis, along with entitlement to a TDIU, for additional development.  

In October 2017, the Veteran executed a VA Form 21-22 in favor of North Carolina Division of Veterans Affairs.  

While the case was in remand statues, in a March 2017 rating decision, service connection for right knee instability was granted with a 10 percent rating effective February 21, 2017.  While the action was couched as one for service connection, the instability rating is part and parcel of the Veteran's claim for increase on appeal.  Thus, the Board takes jurisdiction over the issue and has listed it on the title page.

The decision below addresses an intermediary action regarding the right knee instability rating.  The remainder of the appeal is REMANDED to the RO.  VA will notify the Veteran if further action is required.  

FINDING OF FACT

Since July 9, 2010, the Veteran's service-connected right knee disability has manifested in at least slight instability.


CONCLUSION OF LAW

From July 9, 2010, to February 21, 2017, the criteria for a separate 10 percent rating for right knee instability were met.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5257 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

As noted in the introduction, the Veteran has been awarded a separate 10 percent rating for instability of the right knee associated with his service-connected right knee disability.  This was based on the February 2017 (conducted on February 21, 2017) VA examination that was scheduled pursuant to the Board's remand.

A 10 percent rating is warranted for slight lateral instability of the knee.  See 38 C.F.R. § 4.71a, DC 5257.  The Board notes that the effective date for an increased rating is predicated on when the increase in the level of disability can be factually ascertained and not necessarily the date the evidence is created.  See Swain v. McDonald, 27 Vet. App. 219, 224 (2015).

On further reflection, the Board finds that instability of the right knee is shown since the date of the claim on July 9, 2010.  While the February 2017 VA examination may have been the first instance of "objective" medical evidence of instability, at the earlier December 2010 VA examination, the Veteran reported that he experienced giving way and used a brace.  Although no instability was found on the examination, objective evidence is not categorically necessary to show a manifestation.  At the July 2015 Board hearing, the Veteran continued to state that his right knee would give out and that he used a brace.

Therefore, the Board finds that, since July 9, 2010, the Veteran's service-connected right knee disability has manifested in at least slight instability.  Thus, a separate 10 percent rating is warranted for the entire claim period.  The issue of whether a separate rating for instability in excess of 10 percent remains on appeal and is addressed in the remand section.  This intermediary grant of benefits will not prejudice the Veteran.


ORDER

From July 9, 2010, to February 21, 2017, a separate 10 percent rating for instability of the right knee is granted, subject to the laws and regulations governing the payment of monetary benefits.


REMAND

The Veteran seeks a higher rating for his service-connected chondromalacia of the right knee with a history of periostitis.  

In September 2017, additional evidence was associated with the claims file, to include VA Vocational Rehabilitation records in 2012 reflecting the Veteran is in receipt of Supplemental Security Insurance (SSI) disability benefits from the Social Security Administration (SSA) due to service-connected disabilities.  As those SSA records are potentially relevant to the increased rating and TDIU claims, a remand is warranted on this basis.  See 38 C.F.R. § 3.159(c)(2); Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). 

In addition, and although the Veteran was afforded a VA right knee examination in February 2017, the report of examination does not reflect detailed range of motion findings and findings regarding functional loss, per the recent precedential decisions of Correia v. McDonald, 28 Vet. App. 158 (2016) (instructing that VA orthopedic examinations should include tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing (if applicable) and, if possible, with the range of the opposite undamaged joint), and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) (outlining VA examiners' obligation to elicit information regarding flare-ups of a musculoskeletal disability if the examination is not conducted during such a flare-up, and to use this information to characterize additional functional loss during flare-ups).

The Board note that although the Veteran was afforded another VA knee examination in December 2017, the examination request, as well as the report of examination, both state that the examination was for the left knee only.  Although some findings with respect to the right knee were reported, in view of the Veteran's assertions and the state of the record, a new VA examination is warranted with respect to the current severity of the Veteran's right knee disability.  

Prior to the examination, any outstanding records of pertinent medical treatment must be obtained and added to the record.  

As the issue of entitlement to a higher rating for the service-connected right knee disability and entitlement to a TDIU are intertwined, the TDIU claim must be remanded as well.  

Accordingly, these issues are REMANDED for the following actions:

1.  Obtain complete VA treatment records since April 2017.  

2.  Schedule a VA examination by an appropriate medical professional to assess the current severity of the Veteran's service-connected right knee disability, to include specific findings regarding pain on range of motion testing and an estimation of functional loss, per Correia and Sharp.  All indicated tests should be conducted.  

After reviewing the Veteran's claims file and eliciting the history of the Veteran's right knee symptoms, to specifically include any symptoms and functional impact that he experiences during flare-ups of right knee pain, the examiner should conduct a relevant clinical examination.  Specifically, the Veteran's right knee should be tested for pain in both weight-bearing and nonweight-bearing positions, and on both active and passive motion.  If this cannot be performed, the examiner should explain why.  

The examiner should also estimate the functional loss that would occur during flares.  

The examiner should also assess the level of instability or subluxation of the right knee, if present, expressed in terms of the levels such as mild, moderate, or severe.  If instability is not found, the examiner should provide an explanation for that finding.  

The examiner should also comment on the effect of the Veteran's service-connected knee disabilities on his ability to secure and follow a gainful occupation.  

A rationale for all opinions expressed should be provided.  

3.  Finally, readjudicate the issues on appeal, including the instability rating issue.  If any benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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. §§ 5109B, 7112.




_________________________________________________
RYAN T. KESSEL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs