Citation Nr: 18147843
Decision Date: 11/06/18	Archive Date: 11/06/18

DOCKET NO. 14-22 007
DATE:	November 6, 2018
REMANDED
1. A rating in excess of 40 percent for right knee status post ligament repair prior to January 6, 2015, and in excess of 40 percent for right knee total replacement thereafter, exclusive of the periods of temporary total ratings from January 6, 2015 to February 29, 2016 and from May 2, 2017 to June 30, 2017, is remanded.
2. A rating in excess of 10 percent for right knee scars is remanded. 
3. A rating in excess of 10 percent prior to August 1, 2017 for left patellofemoral syndrome is remanded.
4. A rating in excess of 30 percent for left total knee replacement since August 1, 2017, exclusive of the period of a temporary total rating from August 1, 2017 to September 30, 2018, is remanded.
5. A total disability rating based on individual unemployability (TDIU) is remanded.
6.  Service connection for a lower back disorder is remanded.
7.  Service connection for right lower extremity radiculopathy is remanded.
8.  Service connection for left lower extremity radiculopathy is remanded.
FINDINGS OF FACT
1.  The December 2016 rating decision reducing the Veteran’s compensation for a right knee disability from 40 percent to 30 percent was improper.
2.  Since August 1, 2017, exclusive of the period of a temporary total rating from August 1, 2017 to September 30, 2018, the Veteran’s left knee total replacement has resulted in intermediate degrees of residual weakness, pain or limitation of motion, but not chronic residuals consisting of severe painful motion or weakness in the affected extremity.
3.  The Veteran’s right knee scars are not painful or unstable.
CONCLUSIONS OF LAW
1.  The Veteran’s right knee rating reduction from 40 percent to 30 percent is void ab initio.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105.
2.  Since August 1, 2017, exclusive of the period of a temporary total rating from August 1, 2017 to September 30, 2018, the criteria for a left total knee replacement rating in excess of 30 percent have not been met.  U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5055.
3.  The criteria for a rating in excess of 10 percent for right knee scars have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.118, DC 7804.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from March 1984 to July 1997.
The case is on appeal from a July 2012 rating decision.
In May 2018, the Board denied increased ratings for bilateral bunionectomies and hypertension, granted separate 10 percent ratings for bilateral Morton’s neuroma, and remanded for additional development increased rating claims for bilateral knee disabilities and right knee scars and entitlement to a TDIU.
The Board also notes that, in a December 2016 rating decision, the RO reduced the rating for the right knee replacement from 40 percent to 30 percent effective September 28, 2016.  The RO did not follow the steps in 38 C.F.R. § 3.105(e) for reducing a disability rating because this action did not result in a decrease in the Veteran’s overall amount of compensation payable for his combined service-connected disabilities, which remained at 80 percent.  See VAOPGCPREC 71-91.  The Veteran did not appeal that reduction.  Accordingly, the Board does not have jurisdiction of the issue of whether the reduction was proper.  See Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992) (disability rating issues are separate from reduction issues).  
REASONS FOR REMAND
1.  A rating in excess of 40 percent for right knee status post ligament repair prior to January 6, 2015, and in excess of 40 percent for right knee total replacement thereafter, exclusive of the periods of temporary total ratings from January 6, 2015 to February 29, 2016 and from May 2, 2017 to June 30, 2017, is remanded.
2.  Entitlement to a rating in excess of 10 percent prior to August 1, 2017 for left patellofemoral syndrome, exclusive of the period of a temporary total rating from November 2, 2016 to December 31, 2016.
3. A rating in excess of 30 percent for left total knee replacement since August 1, 2017, exclusive of the period of a temporary total rating from August 1, 2017 to September 30, 2018, is remanded.
4. A rating in excess of 10 percent for right knee scars is remanded
5.  Entitlement to a TDIU.
The Veteran contends that he should have higher ratings for his service connected right and left knees prior to undergoing total knee replacements.  In this regard, the Board remanded these claims in May 2018 to obtain detailed range of motion findings or findings regarding functional loss, per Correia v. McDonald, 28 Vet. App. 158 (2016).  However, remand is required because a June 2018 VA examination did not contain findings complaint with Correia or Sharp v. Shulkin, 29 Vet. App. 26 (2017).  Relatedly, historic findings pursuant to Correia and Sharp are need for the times of the June 2012, June 2016, and November 2016 bilateral knee examinations.  
In addition, the Veteran’s claim for a higher rating for a right knee scar and a TDIU are also remanded as they are both intertwined with these claims.  Furthermore, the Veteran should be asked to complete another TDIU application to update his employment and educational and training information because, at the time of his prior VA Form 21-8940, he was still working full time.
6.  Entitlement to service connection for a lower back disorder is remanded.
7.  Entitlement to service connection for right lower extremity radiculopathy is remanded.
8.  Entitlement to service connection for left lower extremity radiculopathy is remanded.
The claims of service connection for a lower back disorder and bilateral lower extremity radiculopathy must be remanded for issuance of a statement of the case (SOC).  In this regard, these claims were denied by an August 2017 rating decision.  Thereafter, in July 2018, the Veteran filed a notice of disagreement (NOD) in regard to these claims on the proper standardized VA form.  As an SOC has not yet been issued, the Board shall remand these claims to the RO with instructions to prepare and issue an SOC.  See 38 C.F.R. § 19.9(c); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).
The matters are REMANDED for the following actions:
1.  Prepare an SOC in accordance with 38 C.F.R. § 19.29 regarding the issues of entitlement to service connection for a lower back disorder and right and left lower extremity radiculopathy.  This is required unless these matters are resolved by granting the full benefits sought or by the Veteran’s withdrawal of the NOD.  If, and only if, the Veteran files a timely substantive appeal should the issues be returned to the Board.
2.  The Veteran should be requested to complete and return a new VA Form 21-8940 Veteran’s Application for Increased Compensation Based on Unemployability to update his employment and educational history.
3. Schedule the Veteran for an examination of the current severity of his right and left knee disabilities.  The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing.  The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups and after repeated use over time, and the degree of functional loss during flare-ups and after repeated use over time.  To the extent possible, the examiner should identify any symptoms and functional impairments due to the disabilities alone and discuss the effect of the Veteran’s disabilities on any occupational functioning and activities of daily living.  If it is not possible to provide a specific measurement or an opinion regarding flare-ups and after repeated use over time, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).
The examiner should also provide retrospective findings in regard to pain on range of motion testing and an estimation of functional loss, per Correia and Sharp.  
(a.) The examiner should also estimate active motion, passive motion, and pain with weight-bearing and without weight-bearing, plus the amount in degrees of range of motion lost due to flare-ups and repeated use over time at the time of the June 2012, June 2016, and November 2016 examinations. 
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(b.)  The examiner should comment upon the functional impairment resulting from the Veteran’s right and left knee disabilities at the time of the June 2012, June 2016, and November 2016 examinations.
 
C. BOSELY
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	D. Jimerfield, Associate Counsel