Citation Nr: 21061696 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 11-15 080 DATE: October 5, 2021 REMANDED Entitlement to a rating in excess of 10 percent for a right knee disability is remanded. Entitlement to a rating in excess of 10 percent for a left knee disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from July 1986 to February 1990. This case comes to the Board of Veterans' Appeals (Board) on appeal from August 2009 and May 2012 Department of Veterans Affairs (VA) rating decisions. In August 2014, the Board remanded the case to the agency of original jurisdiction (AOJ). In January 2017, a Board videoconference hearing was held before the undersigned. In April 2017, the case was remanded to the AOJ for additional development. An April 2018 Board decision, in pertinent part, denied higher ratings for right and left knee disabilities and remanded the TDIU issue. The Veteran appealed that part of the Board's decision denying higher knee ratings to the United States Court of Appeal for Veterans Claims (CAVC). A November 2018 CAVC Order granted a November 2018 Joint Motion for Partial Remand (JMPR) of the parties, thereby vacating, in pertinent part, the Board's decision as to the knee claims and remanding the matters to the Board for action consistent with the terms of the JMPR. In June 2019, October 2019, and January 2021, the Board remanded the case to the AOJ for further development. 1. and 2. Entitlement to a rating in excess of 10 percent for a right knee disability to a rating in excess of 10 percent for a left knee disability The March 2021 addendum opinion (furnished by a different provider than the one who examined the Veteran in September 2020) does not adequately address the Veteran's knee range of motion findings in regard to active and passive motion and weight bearing and non-weight bearing conditions, per Correia v. McDonald, 28 Vet. App. 158 (2016). Rather, in a brief statement the provider (evidently, a non-orthopedist) merely recounted the September 2020 examination findings as to range of motion and pain and then opined (without an examination or an indication as to the basis for his conclusion) that the active, passive, non-weight bearing, and weight bearing ranges of motion were "presumptively the same." Thus, the case must be returned to ensure compliance with the Board's January 2021 remand directives, per Stegall v. West, 11 Vet. App. 268 (1998). A review of recent VA records, including MRIs of the knees in 2019 and 2020, indicates that the Veteran's knees each have meniscal conditions. The September 2020 VA examiner found there are meniscal conditions with each knee joint, whereas previous VA examiners indicated there was no meniscal injury. A new examination is needed to distinguish all symptoms and impairment attributable to the meniscal condition (to the exclusion of other conditions, also shown on the recent MRIs) and reconcile such finding with evidence in the record to the contrary. In that regard, it is observed that given the objective medical findings of record and the subjective lay statements of complaints and reports of impairment, it would appear that additional ratings under other criteria may now be warranted, but further development is needed to determine the nature and severity of symptoms attributable to each diagnosed knee disability. Furthermore, portions of the rating schedule for evaluating knee disabilities, including diagnostic code 5257 for recurrent subluxation or lateral instability, were recently amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). Here, a new examination is also warranted on the basis that the record does not contain sufficient evidence to rate the Veteran's disabilities under the new rating criteria. For example, Code 5257 contemplates the use of assistive devices, and the Veteran's records show she has used one or more assistive devices, including knee braces, for ambulation for a long while. 3. Entitlement to a TDIU Historically, an April 2018 Board remand directed that the AOJ refer the TDIU matter to the Director of the Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 4.16(b). However, the AOJ subsequently returned the matter to the Board, pending a final determination of the inextricably intertwined knee (and, at the time, hip) claims. In October 2019 and January 2021, the Board also remanded the inextricably intertwined TDIU matter. As the knee disability claims are being returned for further development, the Board will again defer the TDIU matter. [In that regard, it is noted that the January 2021 award of service connection for bilateral hip disabilities did not result in the Veteran meeting the schedular rating requirements for TDIU under 38 C.F.R. § 4.16(a) for most of the period on appeal. Nevertheless, she may still potentially meet the schedular rating requirements after further development of the knee claims, and thus there would be no need to refer the case to the Director, Compensation Service, under 38 C.F.R. § 4.16(b), as was previously directed.] The matters are REMANDED for the following: 1. Secure all updated (since February 2021) records of VA evaluations and treatment the Veteran has received for her bilateral knee disabilities. 2. Then, arrange for the Veteran to undergo a VA examination by an orthopedist to ascertain the nature and severity of her service-connected right and left knee disabilities. The claims file must be available in conjunction with the examination. The examiner is asked to provide an accurate and full description of all right and left knee symptoms and their impact on her ability to function. The examiner should specifically respond to the following, in regard to each knee: (a). Opine whether the Veteran presently has arthritis of the knee joint (as appears to be likely based on recent MRIs in April 2019 and February 2020), and if so, identify the symptoms associated with the arthritis and when arthritis became manifest. (b). Note the results of knee range-of-motion studies, with notation of the degree of motion at which the Veteran experiences pain and any additional functional limitations due to such factors as weakness, fatigue, lack of endurance, and incoordination (including consideration of what would be expected due to pain during flare-ups or when the knee was used repeatedly over time). The range-of-motion testing should, to the extent possible, include ranges of motion on active and passive motion AND in weight bearing and non-weight bearing, per Correia v. McDonald, 28 Vet. App. 158 (2016) (if it is not medically possible or feasible to obtain any such findings, the examiner must explain why that is so). In recording the results of range-of-motion testing, comment on the Veteran's subjective complaints about her knee flare-ups and whether such assertions may be relied upon to form a conclusion regarding limitation of motion of the joint. (c). In recording the results of knee joint stability testing, comment on the Veteran's long history of subjective complaints about her knees giving way and whether such assertions may be relied upon to form a conclusion regarding instability of the knee joints over the course of the appeal (commencing up to a year prior to the March 2008 filing of her claim). Further, identify whether there is any sprain or ligament tear causing persistent instability, or a diagnosed condition involving the patellofemoral complex (consisting of the quadriceps tendon, the patella, and the patellar tendon) with recurrent instability. (d). Comment on the purpose for the Veteran's use of knee braces and assistive devices (e.g., for providing knee stability in ambulation or for some other reason) and indicate whether a medical provider has specifically prescribed them for a joint sprain or ligamentous tear causing instability, or for patellar instability. (e). Identify all symptoms related to meniscal conditions (as appears to be likely based on recent MRIs in April 2019 and February 2020) and when they became manifest. (Is there dislocated semilunar cartilage or post-removal, symptomatic semilunar cartilage?) Also, comment on the Veteran's long history of subjective complaints of locking, pain, swelling, grinding, and popping and whether such assertions may be relied upon to form a conclusion regarding the presence of a meniscal injury over the course of the appeal (up to a year prior to the March 2008 filing of her claim). (f). Describe the overall impact of the Veteran's knee disability on occupational and daily activity functioning. 3. Ensure that the VA examiner has responded to each request/instruction above regarding the assessment of each knee disability, prior to readjudicating the claim [especially considering the agreement of the parties to the JMPR in reference to limitation of motion findings]. If the examination is incomplete, undertake the necessary development to obtain a report that is adequate to decide the claims. 4. After completion of the development for the knee claims and readjudication of those claims including consideration of the claims under the recent amendments to the knee rating criteria, review the expanded record and readjudicate the TDIU claim, to include (if 38 C.F.R. § 4.16(b) schedular rating requirements remain unmet for any period of the appeal) determining the necessity of referring the claim to the Director, Compensation Service, for consideration of an extraschedular TDIU rating under 38 C.F.R. § 4.16(b) [as the Board previously directed in its April 2017 Remand]. George R. Senyk Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debbie Breitbeil, 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.