Citation Nr: 20003252 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 13-14 181 DATE: January 14, 2020 REMANDED The claim of entitlement to an evaluation in excess of 10 percent for right knee arthritis is remanded. The claim of entitlement to an evaluation in excess of 20 percent for right knee instability, associated with right knee arthritis is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Air Force from April 1973 to April 1978, and November 1989 to February 1997. Additionally, the Veteran has periods of reserve service. These matters are before the Board of Veteran’s Appeals (Board) from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California that denied increased ratings for right knee arthritis and right knee instability. The Board notes that the Veteran received three decisions from the Board; July 2016, July 2017, and January 2018. The July 2016 Board decision remanded the case for a travel board hearing which occurred in March 2017. A written transcript of that hearing has been prepared and associated with the evidence of record. The July 2017 Board decision remanded the Veteran’s case for an updated examination which occurred in August 2017. The Veteran testified at a hearing before a Veterans Law Judge (VLJ) at a video-conference, in October 2017. A written transcript of that hearing has been prepared and associated with the evidence of record. In this hearing the Veteran through her representative argued that her claim should be referred for extraschedular consideration. The January 2018 Board decision remanded the Veteran’s claims for an adequate VA examination and to offer the Veteran an opportunity for a third hearing as the Veteran had received two hearings with two different VLJs and a panel decision is necessary for final adjudication of the claim. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). The Veteran was required to be afforded the opportunity for a hearing before every panel member who will decide the case. In a June 2019 Attorney Brief the Veteran’s representative indicated that VA had failed to notify the Veteran of her option for a third hearing. The Board notes that correspondence was sent to the Veteran’s address of record in January 2018 with directions on how to request a third hearing. VA, as with any other administrative agency, has a "presumption of regularity" that "supports official acts of public officers" and "allows courts to presume that what appears regular is regular." Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001); see Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004); Wise v. Shinseki, 26 Vet. App. 517, 525 (2014). The presumption of regularity extends to VA's ministerial acts of mailing decisional and notice documents to claimants. See, e.g., Clarke v. Nicholson, 21 Vet. App. 130, 133 (2007) (applying the presumption of regularity to the RO's mailing of a rating decision); Crain v. Principi, 17 Vet. App. 182, 186 (2003) (RO's mailing of a Statement of the Case); Schoolman v. West, 12 Vet. App. 307, 310 (1999) (RO's mailing of an application for dependency and indemnity compensation (DIC)); Davis v. Brown, 7 Vet. App. 298, 300 (1994) (Board's mailing of a copy of its decision). As the Veteran has not indicated a desire for a third hearing on the issues of her right knee instability and right knee arthritis the Board finds that VA has complied with its duty to provide the Veteran an opportunity to be heard by every panel member who will decide the case. The Board also notes that the Veteran has a hearing scheduled for January 31, 2020, on the issues of increased ratings for her service-connected lumbar spine disability and left knee disability. Those issues are not on appeal before the Board here and will be addressed in a different decision. Extraschedular An extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. The Board is precluded from assigning an extraschedular rating in the first instance. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd, 9 Vet. App. at 96. Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008); see Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The United States Court of Appeals for Veterans Claims (Court) has further clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and is found inadequate, the Board must determine whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Id. There is competent evidence of record indicating that the Veteran's service-connected right knee disabilities have significant effects on her occupation, and thus her case must be referred to this authority for special consideration under 38 C.F.R. § 3.321(b). Specifically, medical evidence of record, including the August 2018 VA examination report, as well as testimony and lay statements from the Veteran indicated pronounced impairment of her functional capacity as a social worker due to her right knee disabilities. Thus, this clearly shows an impact on the Veteran's employment that is not anticipated by the rating schedule. The Board, therefore, is compelled to remand the increased rating claims, on an extraschedular basis, for immediate referral to the Director of the Compensation and Pension Service or other designate in accordance with 38 C.F.R. § 3.321(b) for consideration of whether this benefit is warranted on an extraschedular basis. Entitlement to an evaluation in excess of 10 percent for right knee arthritis The Veteran contends that she is entitled to an evaluation in excess of 10 percent for her right knee arthritis. Specifically, she contends that her right knee has daily pain, she cannot kneel or squat, and has issues with standing, sitting, and driving for long periods of time and has experienced flare-ups of her right knee. The Veteran was provided a VA examination in October 2017 for her knees which was found to be in direct contradiction to the testimony of the Veteran as to the severity of her right knee disabilities. The Veteran’s claim was remanded in January 2018 for another examination which was provided in August 2018. In the August 2018 examination the Veteran was noted as describing her flare-ups as occurring daily with significant pain, swelling, and weakness that got worse with standing or walking. The Veteran reported difficulty walking, squatting, bending, stooping, climbing stairs, and was no longer able to kneel or run. The examiner noted that the Veteran was not being examined after repetitive use over time, and found that they were unable to say without mere speculation whether pain, weakness, fatigue or incoordination significantly limited functional ability with repeated use over time because the Veteran would need to be examined after repeated use over time to be able to determine functional impairment. The examiner also indicated that the examination was conducted during a flare-up of the right knee but found that they were unable to say without mere speculation if pain weakness, fatigue or incoordination would significantly limit functional ability with flare-ups because the examiner found, “It would be speculative to determine general level of functional impairment during flares based on a single examination at a single point in time.” The Board finds this examination inadequate for VA purposes. To adequately address functional loss or functional impairment of the knee, or other musculoskeletal disability, the examiner must express an opinion as to whether pain could significantly limit functional ability and if possible, provide a picture of that functional loss in terms of additional range of motion loss due to pain on use or during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). However, if there is evidence of flare-ups with functional loss and the examiner concludes that they are unable to provide an opinion as to the estimated range of motion without resorting to speculation then VA may rely on such a conclusion when (1) it is clear that the examiner has considered all procurable and assembled data and (2) the opinion must result from a limitation of the medical community at large and not a limitation based on lack of expertise, insufficient testing, or unprocured testing by the examiner. Id. It is clear to the Board the VA examiner had not considered all procurable and assembled data and had not considered whether the lack of an opinion was due to a limitation in the medical community or of their own expertise, insufficient testing, or unprocured testing. Therefore, the VA examination is inadequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, a more contemporaneous examination is warranted in order to ensure that the record reflects the current severity of the Veteran’s service-connected right knee disability and to provide an opinion as to the functional limitations of the Veteran’s right knee due to her reported flare-ups and functional loss. See Caffrey, 6 Vet. App. 377, 381; Green v. Derwinski, 1 Vet. App. 121, 124 (1991); and see also Sharp, 29 Vet. App. 26. Entitlement to an evaluation in excess of 20 percent for right knee instability, associated with right knee arthritis The Veteran contends that she is entitled to an evaluation in excess of 20 percent for her right knee instability. Specifically, the Veteran contends that her right knee requires a brace and dislocates on its own without cause. A July 2009 rating decision awarded service connection for a right knee disability characterized as right knee instability at 10 percent disabling, effective March 2, 2009. In a rating decision issued March 2019 the Veteran’s right knee instability was increased to 20 percent disabling, effective August 27, 2018. The Veteran’s testimony in both hearings of March 2017 and October 2017 and her treatment records have consistently shown pain, swelling, and her right knee giving out. In December 2016 the Veteran received an arthroscopic partial lateral meniscectomy of the right knee. Subsequent Magnetic Resonance Imaging (MRI) in October 2017 found complete maceration and tearing of the body and anterior horn of the lateral meniscus and a large bucket handle tear of the posterior horn, complete loss of cartilage on both sides of the lateral compartment and over the weightbearing aspect of the medial femoral condyle. Additionally, the MRI showed greater than 50 percent loss of articular cartilage thickness in the patellofemoral compartment associated with mild to moderate osteophyte formation. In the August 2018 VA examination, a meniscus condition was noted, along with frequent episodes of joint locking, joint pain, and joint effusion. The examiner noted that the medical records of the Veteran documented a diagnosis of right lateral meniscus tear and surgery, with noted chronic pain, swelling, and intermittent reports of knee locking. The examiner also noted the meniscal surgery was performed in December 2017 when it was December 2016. The examiner also notes the MRI from October 2017 discussed above. This record suggests that a separate rating or ratings under 38 C.F.R. § 4.71a, Diagnostic Codes 5258 and 5259 may be warranted, and that staged ratings should be considered. Notably, there is no rating decision that delineates whether meniscal impairment is encompassed in the service-connected entity. The fact that the Veteran underwent right knee surgery in December 2016 also raises for consideration the inextricably intertwined [because it may exclude from consideration a period of during which entitlement to an increase may be rendered moot] matter question of whether a temporary total rating for convalescence (under 38 C.F.R. § 4.30) may be warranted. The issue of whether the Veteran is entitled to separate ratings for a right knee meniscal surgery, whether the right knee surgery has affected the severity of the Veteran’s right knee instability, and the matter of entitlement to a temporary total (convalescence) rating must be developed and addressed. These matters are REMANDED for the following actions: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and her representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such records herself. 2. After obtaining any outstanding records, schedule the Veteran for an examination by an appropriate clinician to determine the current level of severity of her service-connected right knee disability (the Board stresses that the Veteran presently does have separate ratings based on limitation of motion and instability of her right knee disability but not for her meniscal tear and surgery). The Veteran’s claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. The examiner must consider the Veteran’s lay reports of observable symptomatology associated with each disability and testimony as to the instability of her right knee from the March and October 2017 hearings. All indicated tests and studies should be performed and the examiner should address the following: (a.) Determine the current range of motion of the Veteran’s right knee disability– this is to specifically include range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing, as well as describe how the Veteran’s degree of limited motion in her right knee compares to the degree of motion of the left knee. (b.) The examiner should also indicate whether there is additional limitation of motion of the right knee associated with repetitive motion and/or functional limitation due to factors such as pain and pain on use, including that experienced during flare ups; whether there is weakened movement, excess fatigability, or incoordination. (c.) Also describe in detail the severity and symptomatology related to the Veteran’s already service-connected instability of the right knee. The examiner should also identify and describe in detail any additional symptomatology or impairment found to be associated with the Veteran’s right knee. (d.) Finally, the examiner should describe in detail all functional loss associated with the Veteran’s service-connected right knee. In doing so, the examiner should fully consider and discuss the Veteran’s lay reports of functional loss on both her daily life and ability to work. (e.) The examiner should elicit from the Veteran a complete history of any flare-ups of her right knee disability. In so doing, the examiner should inquire as to the frequency, duration, characteristics, severity, and functional loss during periods of flare-ups of the Veteran’s right knee disability. The examiner should describe the additional loss, in degrees, if possible. In rendering the opinion, the examiner should derive his or her estimate from relevant sources within the claims file, including lay statements of the Veteran. It is insufficient to conclude that the requested opinion cannot be rendered without resorting to speculation based solely on the fact that the VA examinations were not performed during a flare-up. Sharp v. Shulkin, 29 Vet. App. 26 (2017). A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 3. Then review the record; arrange for any further development necessary (such as a medical opinion regarding the expected period of convalescence following the type of surgery performed and the clinical presentation following the surgery); and adjudicate the matter of entitlement to a temporary total rating under 38 C.F.R. § 4.30, and notify the Veteran of the determination (and appellate rights). Amend the code-sheets, as indicated, to reflect any further pathology that is found to be encompassed by the service-connected right knee disability. 4. Thereafter, following any additional development indicated readjudicate the claim for an increased rating for the right knee disability claims considering the determination on the claim for a temporary total rating for the right knee disability. Consider also the above observations regarding the possibility for separate ratings under Codes 5258 (prior to the surgery) and 5259 (post-surgery), as well as the possibility of staged ratings. 5. Refer the claim of entitlement to an evaluation in excess of 10 percent for right knee arthritis and 20 percent for right knee instability, on an extraschedular basis, to the Director of Compensation and Pension Service, pursuant to the provision of 38 C.F.R. § 3.321(b) for consideration of whether this benefit is warranted on an extraschedular basis. This referral is mandatory, although the decision of whether to actually award an extraschedular rating remains to be decided by the Director of Compensation and Pension Service or designate. (CONTINUED NEXT PAGE) 6. Following completion of the foregoing, the Agency of Original Jurisdiction (AOJ) should review the record, perform any necessary development, and readjudicate the claim on appeal. If the appeal is denied, the AOJ should issue an appropriate Supplemental Statement of the Case (SSOC), afford the Veteran and her representative an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C.A. Teich, Associate Counsel 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.