Citation Nr: 1801548 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 12-04 987 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a rating in excess of 10 percent prior to January 13, 2012, for post-operative residuals of left knee meniscectomy. 2. Entitlement to a rating in excess of 30 percent since March 1, 2013 for total left knee arthroplasty. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kenneth Ciardiello, Associate Counsel INTRODUCTION The Veteran had active service from June 1969 to June 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2011 and February 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified before the undersigned Veterans Law Judge in a videoconference hearing in May 2017. The issue of entitlement to a TDIU due to a disability that is on appeal was raised by the record as part and parcel of the Veteran's appeal of the rating that was assigned for his left knee disability. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (holding that a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or as part of a claim for increased compensation). The issues of entitlement to a rating in excess of 10 percent prior to January 13, 2012, for post-operative residuals of left knee meniscectomy, a rating in excess of 30 percent since March 1, 2013, for total left knee arthroplasty, and a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT Prior to January 13, 2012, the Veteran's left knee was moderately unstable. CONCLUSION OF LAW The criteria for a separate rating of 20 percent for left knee recurrent subluxation or lateral instability have been met during the appeal period prior to January 13, 2012. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.40, 4.45, 4.49, 4.71a, Diagnostic Code (DC) 5257 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran seeks a higher rating for post-operative residuals of left knee meniscectomy, which is currently rated as 10 percent disabling prior to January 13, 2012, under DC 5259. The Board finds that a separate rating of 20 percent under DC 5257 is warranted. Under 38 C.F.R. § 4.71a, DC 5257, slight recurrent subluxation or lateral instability will be rated as 10 percent disabling, moderate recurrent subluxation or lateral instability will be rated as 20 percent disabling, and severe recurrent subluxation or lateral instability warrants a 30 percent rating. The terms "mild," "moderate" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decision is "equitable and just." 38 C.F.R. § 4.6. The evidence demonstrates that the Veteran's left knee instability has more nearly approximated "moderate" recurrent subluxation or lateral instability throughout the appeal period prior to January 13, 2012. This is evidenced by the Veteran's competent and credible lay testimony that prior to January 13, 2012, his knee would give out three to four times per month, and that he has to wear a knee brace for stability. See May 2017 Hearing Transcript at 7 and 12; see also Layno v. Brown, 6 Vet. App. 465 (1994). Accordingly, the Board finds that a separate 20 percent rating under DC 5257 for left knee recurrent subluxation or lateral instability prior to January 13, 2012, is warranted. The Veteran has stated that a grant of a 30 percent combined rating prior to January 13, 2012, for post-operative residuals of left knee meniscectomy would satisfy his appeal. See May 2017 Hearing Transcript at 12. The separate grant of 20 percent for left knee instability under DC 5257, in addition to the existing rating of 10 percent under DC 5259 produces a 30 percent combined rating prior to January 13, 2012. Thus, the Board need not address whether a higher rating is warranted. See AB v. Brown, 6 Vet. App. 35, 38 (1993). ORDER Subject to the law and regulations governing payment of monetary benefits, a separate disability rating of 20 percent for left knee recurrent subluxation or lateral instability is granted prior to January 13, 2012. REMAND In regards to the issue of entitlement to a rating in excess of 30 percent since March 1, 2013 for total left knee arthroplasty, the Board finds that remand is required to provide the Veteran with a new VA knee examination. The Veteran was last afforded such an examination in October 2010. Since then, the Court in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of § 4.59 requires that VA examinations involving joints should test 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. This was not accomplished during the October 2010 VA examination. Therefore, the Board must remand this case for an examination that adequately evaluates the Veteran's service-connected left knee disability. In addition, recently, the Court in Sharp v. Shulkin, 29 Vet. App. 26 (2017) addressed the adequacy of a VA examiner's opinion concerning additional functional loss during flare-ups of a musculoskeletal disability, pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must "elicit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why [he or] she c[an] not do so." Thus, in light of the Court's determination in Sharp, the Board finds that this matter must be remanded for a new VA examination and opinion addressing the issue of limitation of motion during flare-ups. Finally, the Veteran's TDIU claim is inextricably intertwined with the other claims currently on appeal. The appropriate remedy where a claim is inextricably intertwined with other claims currently on appeal is to remand the claim pending the adjudication of the inextricably intertwined issues. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Obtain any missing VA treatment records and associate them with the claims file. 2. Contact the Veteran and ask that he identify any outstanding VA and non-VA records pertaining to his left knee disability that are not already of record. Notify the Veteran that he may submit additional lay statements from himself and from other individuals who have first-hand knowledge of left knee disability. He should be provided an appropriate amount of time to submit this lay evidence. 3. After obtaining any additional records to the extent possible, the Veteran should be afforded new examination to evaluate the current nature and severity of his service-connected left knee disability. The claims folder should be made available to the examiner for review before the examination. It is imperative that the examiner comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. The examiner should also offer an estimate as to additional functional loss during flares regardless of whether the Veteran is undergoing a flare-up at the time of the examination. Further, in accord with the requirements of 38 C.F.R. § 4.59, the joints involved should 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; or an explanation from the examiner that any such testing cannot or should not be conducted. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his left knee symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. 4. Readjudicate the claim on appeal, undertaking any additional development deemed necessary. If any of the benefits sought on appeal remain denied, issue the Veteran and his representative a Supplemental Statement of the Case and return the matter to the Board for further review. 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). 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. §§ 5109B, 7112 (2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs