Citation Nr: 20021982 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 16-31 876 DATE: March 30, 2020 REMANDED Entitlement to an initial rating in excess of 10 percent prior to May 31, 2012, in excess of 20 percent from May 31, 2012, to October 26, 2014, and in excess of 30 percent from December 1, 2015, for service-connected status post left knee total replacement (left knee disability) (exclusive of the period from October 27, 2014, to November 20, 2015, during when a 100 percent disability rating was assigned pursuant to Diagnostic 5055) is remanded. Entitlement to an initial rating in excess of 10 prior to June 25, 2018, and in excess of 30 percent from August 1, 2019, for service-connected left reverse shoulder arthroplasty (exclusive of the period from June 25, 2018 to July 31, 2019, during when a 100 percent disability rating was assigned pursuant to Diagnostic 5051) is remanded. Entitlement to service connection for reactive airway disease is remand. REASONS FOR REMAND The Veteran served on active duty in June 1968 to June 1970, and from July 1971 to October 1976. He had subsequent service in the Louisiana Army National Guard, including a period of active duty for special work from August 2005 to December 2005. In his August 2016 substantive appeal, the Veteran requested a Central Office hearing before a Veterans Law Judge in connection with his claim for service connection for reactive airway disease. Although a hearing was scheduled for July 2019, prior to the hearing, he withdrew his request. See 38 C.F.R. § 20.704(e) (2019). 1. Left Knee Disability In a June 2016 rating decision, the agency of original jurisdiction (AOJ) awarded a 100 percent disability rating to the Veteran’s left knee disability under Diagnostic Code 5055, effective October 27, 2014. 38 C.F.R. § 4.71a. The AOJ then awarded a 30 percent disability rating under Diagnostic Code 5055, effective December 1, 2015. Under Diagnostic Code 5055, a 100 percent disability rating is warranted for one year following the implantation of prosthesis (i.e. a knee replacement surgery). At the expiration of the 100 percent rating for one year, a minimum rating of 30 percent is provided post knee replacement. For intermediate degrees of residual weakness, pain, or limitation of motion, warranting a rating greater than 30 percent but less than 60 percent, the code calls for rating by analogy to Diagnostic Codes 5256 (contemplating ankylosis), 5261 (contemplating limitation of extension), and 5262 (contemplating impairment of tibia and fibula). A 60 percent rating is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. The most recent VA examination to address the nature and severity of the Veteran’s service-connected left knee disability occurred in November 2015; however, the findings contained in the examination report are insufficient to adjudicate the Veteran’s claim. For example, the examiner noted that the Veteran had undergone a total knee joint replacement in 2014, and that he experienced intermediate degrees of residual weakness, pain, or limitation of motion; however, the examiner did not provide a description as to the severity of the intermediate degrees of residual weakness, pain, or limitation of motion. Furthermore, subsequent VA treatment records indicate that the Veteran experiences locking in his knees, although it is unclear as to whether such is related to his service-connected left knee disability or his nonservice-connected right knee. See June 2016 VA Physical Therapy Note. To ensure an adequate record upon which to decide the Veteran’s claim for an increased rating for his service-connected let knee disability, he should be afforded a new VA examination. 2. Left Shoulder Disability The most recent VA examination to assess the nature and severity of his service-connected left shoulder disability was in November 2015. Subsequently, the Veteran underwent surgery in June 2018. Given that the evidence of record suggests that his service-connected left shoulder disability may have worsened since the November 2015 VA examination, the Board finds that a more contemporaneous examination is needed to fully and fairly evaluate the issue on appeal. See Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). 3. Reactive Airway Disease The Veteran claims entitlement to service connection for reactive airway disease as a result of his military service. Specifically, the Veteran attributed his current reactive airway disease to his service during Hurricane Katrina and his exposure to environmental hazards, including demolition debris and mold. See, e.g., May 2015 VA Form 21-0958, Notice of Disagreement. The Veteran’s service personnel records confirm that as a member of the Louisiana Army National Guard, he served on active duty for special work (ADSW) in the aftermath of Hurricane Katrina from August 29, 2005 to December 31, 2005. A November 2014 VA treatment record noted the Veteran’s report of working in New Orleans during the aftermath of Hurricane Katrina and being exposed to building demolitions. He stated that he started to experience chest congestion, intermittent cough, and wheezing thereafter. He was diagnosed with reactive airway dysfunction syndrome. The AOJ should contact any appropriate entity to verify whether the Veteran’s service during and following Hurricane Katrina from August through December 2005 was Federal National Guard service, or whether such was state-controlled service. If it is established that the Veteran had qualifying (Federal) service for VA compensation purposes, the Veteran should be afforded a VA examination to determine whether the Veteran’s reactive airway disease is related to his exposures in 2005. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). On remand, the AOJ should also associate with the record any outstanding VA treatment records that are not currently associated with the claims file. Records dated through June 4, 2018, are currently of record. Additionally, the Veteran should be given the opportunity to identify any outstanding pertinent evidence. The matters are REMANDED for the following action: 1. Through all appropriate means deemed necessary by the AOJ, verify the Veteran’s period of active duty for Federalized National Guard service, ACDUTRA (active duty for training), or INDUCTRA (inactive duty for training). If necessary, a request should be made to the Defense Finance and Accounting Service (DFAS). In particular, it must be determined whether the Veteran’s service following Hurricane Katrina from August 29, 2005 to December 31, 2005 was Federal or state-controlled service. The Veteran should be invited to submit copies of any Orders he may have pertaining to that deployment. 2. Associate with the claims file any VA treatment records dated from June 4, 2018, to the present. 3. Schedule the Veteran for VA examinations to assess the severity of his service-connected left knee disability and left shoulder disability. The entire record must be made available to and be reviewed by the examiner or examiners. The examiner(s) should take a history from the Veteran as to the progression of his service-connected disabilities. Any indicated evaluations, studies, and tests should be conducted. The examiners must address each of the following inquiries, as appropriate: a) The examiner should describe all symptoms associated with the Veteran’s service-connected left knee disability and left shoulder disability. b) For each joint, the examiner should test for pain on motion in active motion, passive motion, weight-bearing, and nonweight-bearing. c) For each joint, the Veteran should be asked to identify the frequency, severity and duration of flare-ups, if any. Even if the Veteran is not experiencing a flare-up at the time of the examination, the examiner must elicit relevant information as to his flare-ups and ask him to describe the additional functional loss, if any, he suffers during flare-ups or following repeated use. If the examination does not occur during a flare-up or following repetitive use, based upon the evidence of record, and the information elicited on examination, the examiner should estimate the degree of range of motion loss caused during flare-ups or after repetitive use, if any. All examination findings/testing results, along with a complete, clearly-stated rationale for any opinion offered, must be provided. 4. If it is determined that the Veteran’s period of active duty for special work from August 29, 2005 to December 31, 2005 was indeed Federal service, the Veteran should be afforded a VA examination to determine whether his reactive airway disease is related to such service. The record must be made available to, and reviewed by, the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should take a history from the Veteran as to the progression of his claimed disability. Following a review of the entire record, to include the Veteran’s lay statements concerning onset and continuity of symptomatology, the examiner should address the following question: For the Veteran’s reactive duty airway disease, is it at least as likely as not (i.e., a 50 percent or greater probability) that such had its onset in, or is otherwise related to, his active duty for special work in the aftermath of Hurricane Katrina? The examiner should specifically address the Veteran’s contention that he experiences reactive airway disease as a result of his exposure to mold and demolished building materials, and that he began to experience chest congestion, intermittent cough, and wheezing during this period of service. A complete rationale must be provided for all opinions, and must be based on consideration of all pertinent lay and medical evidence. 5. Thereafter, and after any further development deemed necessary, the issues on appeal should be readjudicated. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded the appropriate opportunity to respond. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Springer, 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.