Citation Nr: 20021887 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 14-10 650 DATE: March 27, 2020 ORDER A rating in excess of 10 percent for instability of the right knee, is denied.   REMANDED A rating in excess of 40 percent for osteoarthritis of the left knee. A rating in excess of 40 percent for osteoarthritis of the right knee. A rating in excess of 30 percent for residuals of a total left knee replacement. A rating in excess of 40 percent for residuals of a total right knee replacement. A rating in excess of 20 percent for degenerative disc disease (DDD) of the thoracolumbar spine. A rating in excess of 10 percent for radiculopathy of the left lower extremity. FINDING OF FACT Instability of the right knee is, at most, slight. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for instability of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5257. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1969 to July 1991. The case is on appeal from a May 2013 rating decision. In May 2016, the Veteran testified at a Board hearing. At the hearing, the withdrew the issues of a higher rating for left knee instability and a total disability rating based on individual unemployability (TDIU). In a July 2016 Board decision, a 100 percent temporary rating was granted based on a left total knee replacement from April 19, 2016. The increased rating claims for instability of the right knee, arthritis of the right knee, arthritis of the left knee, DDD of the thoracolumbar spine, and radiculopathy of the left lower extremity were remanded for additional development. In an August 2016 rating decision, the RO implemented the Board’s grant of a 100 percent rating based on convalescence due to a total left knee replacement from April 19, 2016, and assigned a 30 percent rating under 38 C.F.R. § 4.71a, DC 5055 for residuals of the total knee replacement from June 1, 2017. Although the 30 percent rating under DC 5055 replaced the prior separate rating for arthritis of the left knee, the higher rating claim for left knee arthritis prior to April 19, 2016, remains on appeal. In addition, special monthly compensation (SMC) at the housebound rate was awarded, from April 19, 2016 to June 1, 2017. In an August 2017 rating decision, a 100 percent rating was assigned based on convalescence due to a right total knee replacement, from May 30, 2017, and a 40 percent rating was assigned under 38 C.F.R. § 4.71a, DC 5055 for residuals of the right total knee replacement from July 1, 2018. Although the 40 percent rating assigned under DC 5055 replaced the prior separate ratings for instability and arthritis of the right knee, the higher rating claims for instability and arthritis of the right knee, prior to May 30, 2017, remain on appeal. In addition, the decision reflects the award of SMC at the housebound rate from April 19, 2016 to June 30, 2018. The Board notes that ,although the Veteran did not file a notice of disagreement (NOD) with an October 2018 rating decision reducing his disability rating from 40 to 30 percent for residuals of a right total knee replacement, from January 1, 2019, and thus, such is not under the Board’s jurisdiction, an allowance (partial or full) of the underlying issue seeking an increased rating for this disability may restore the prior rating. Additional evidence was received subsequent to the supplemental statement of the case in January 2017. As the evidence is not pertinent to the claim decided herein, a remand for RO consideration of the evidence is not necessary. See 38 C.F.R. § 20.1304(c). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). A rating in excess of 10 percent for instability of the right knee. I. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Under DC 5257, a 10 percent rating is warranted for either slight recurrent subluxation or slight lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or moderate lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or severe lateral instability. 38 C.F.R. § 4.71a, DC 5257. II. Analysis The Veteran’s instability of the right knee is separately rated under DC 5257 as a part of the higher rating claim for the right knee disability. As reflected above, although the 40 percent rating for residuals of a right total knee replacement assigned under DC 5055 replaced the prior separate rating for instability of the right knee. However, the appeal period prior to the right total knee replacement in May 2017 remains on appeal. The Board finds that a rating in excess of 10 percent is not warranted for right knee instability. Both the April 2013 and May 2015 VA examiners reported that right knee joint stability testing was normal, and no instability of the right knee was noted. In addition, and although the September 2015 VA examination report reflects slight (1+) instability/subluxation of the right knee, VA treatment records in September 2016 reflect that the right knee joint was stable. The Board notes that use of a knee brace, as well as difficulty sitting and standing are contemplated by the separate ratings assigned for arthritis and limitation of motion of the right knee during the relevant period. See 38 C.F.R. § 4.45; Spellers v. Wilkie, 30 Vet. App. 211, 218 (2018). Moreover, the October 2016 VA examination report reflects no instability of the right knee. The examiner reported that all joints of the right knee were normal. Thus, a rating is excess of 10 percent for instability of the right knee is not warranted, as no more than slight instability has been shown. 38 C.F.R. § 4.71a, DC 5257. The preponderance of the evidence is against a rating higher than 10 percent for instability of the right knee at any time during the appeal prior to May 30, 2017. Thus, the benefit-of-the-doubt doctrine is not applicable, and a rating in excess of 10 percent for instability of the right knee is not warranted. Although the Board is remanding other issues for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d).   REASONS FOR REMAND 1. A rating in excess of 40 percent for osteoarthritis of the left knee. 2. A rating in excess of 40 percent for osteoarthritis of the right knee. 3. A rating in excess of 30 percent for residuals of a left total knee replacement. 4. A rating in excess of 40 percent for residuals of a right total knee replacement. 5. A rating in excess of 20 percent for DDD of the thoracolumbar spine. 6. A rating in excess of 10 percent for radiculopathy of the left lower extremity. The Veteran was afforded VA knee and back examinations in October 2016. At the time of the examinations, the Veteran reported daily flare-ups of knee pain, as well as flare ups of back pain with certain activities. Disturbance of locomotion, as well as interference with sitting and standing, was reported. The examiners indicated that the testing was not conducted during a flare-up, noting that the examinations were neither medically consistent nor inconsistent with the Veteran’s statement describing functional loss during flare-ups. The examiner also noted that she could not say without resorting to speculation whether flare-ups significantly limit his functional ability, and did not provide estimates of degrees of range of motion during flare-ups. In addition, the Veteran underwent a total right knee replacement in May 2017. Thus, the October 2016 VA examination reports are not completely adequate. As such, the Veteran should be scheduled for a new VA examination to assess the severity of the service-connected knee and back disabilities, to include complying with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). As the back examination will address associated radiculopathy of the left lower extremity, the higher rating claim for radiculopathy is also remanded. In light of the remand, updated VA treatment records since the issuance of the January 2017 supplemental statement of the case should be obtained. In addition, the Veteran’s vocational rehabilitation folder should be associated with the claims file, as the records may be relevant to the claims on appeal. See February 2018 letter. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records since January 2017. 2. Associate the Veteran’s vocational rehabilitation folder with the claims file. 3. Schedule the Veteran for a VA examination to assess the severity of the service-connected right and left knee disabilities. This should include testing 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. If there are flare-ups, but if the examination is not conducted during a flare-up, the functional impact of a flare-up in terms of degrees of range of motion should be estimated. In addition, a retrospective assessment/opinion should be provided as to the severity of the right and left knee disabilities prior to the total right and left knee replacements in May 2017 and April 2016, respectively, to include an estimate of the amount in degrees of range of motion lost due to pain in weight-bearing and nonweight-bearing positions, and on both active and passive motion, including at the time of VA examinations in April 2013, March 2015, September 2015, and October 2016. The opinion should include consideration of the evidence, to include the Veteran’s statements, including with respect to leg length discrepancy. See May 2016 Board hearing testimony. If the examiner cannot provide some or all such retrospective opinions, the examiner must make clear that he or she has considered all relevant, procurable data, but that any member of the medical community at large could not provide such an opinion without resorting to speculation. A rationale for all opinions expressed should be provided. 4. Schedule the Veteran for a VA examination to assess the severity of the service-connected back disability and left lower extremity radiculopathy. This should include testing 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. If there are flare-ups, but if the examination is not conducted during a flare-up, the functional impact of a flare-up in terms of degrees of range of motion should be estimated, to include at the time of VA examinations in April 2013, March 2015, and October 2016. If the examiner cannot provide some or all such retrospective opinions, the examiner must make clear that he or she has considered all relevant, procurable data, but that any member of the medical community at large could not provide such an opinion without resorting to speculation. A rationale for all opinions expressed should be provided. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Taylor 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.