Citation Nr: 21063227 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 16-15 480 DATE: October 13, 2021 REMANDED Entitlement to a disability rating exceeding 10 percent for the right knee prior to February 12, 2018 is remanded. Entitlement to a disability rating exceeding 30 percent for the right knee beginning April 1, 2019 is remanded. Entitlement to a compensable disability rating for the left knee prior to March 18, 2019 is remanded. Entitlement to a disability rating exceeding 30 percent for the left knee beginning May 1, 2020 is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served honorably on active duty from October 1974 to October 1979, March 1982 to June 1989, June 1989 to December 1990, and January 1991 to May 1996. This appeal comes to the Board of Veterans' Appeals (Board) from a February 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded these matters in January 2020 for additional evidentiary development including obtaining retrospective opinions on the severity of the right knee disability prior to surgery in February 2018 and the left knee disability prior to surgery in March 2019. While VA obtained a retrospective medical opinion in May 2021 on the severity of the Veteran's knee disabilities, the Board finds the opinion is not adequate to rate the Veteran's knee disabilities under the applicable rating criteria. The opinion contains a limited retrospective assessment of the Veteran's knees without the benefit of a current examination. The Veteran underwent surgery on his left knee following the last in-person VA examination in March 2019, and the record lacks a current examination of the Veteran's functional abilities of the left knee following the surgery. See March 2019 treatment notes from M.K, MD and L.J., MD. Moreover, the pertinent rating criteria for rating the knees has changed effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). The new knee rating criteria provides separate criteria for lateral and patellar instability, which have not been separately addressed by VA examiner to date. Furthermore, the record lacks assessments from the Veteran's treatment providers sufficient to rate under the new criteria. For example, the record lacks a current assessment from a doctor on the extent to which the recent left knee surgery was successful and the extent to which the Veteran has required assistive devices. It lacks an assessment of the impact of the surgery on knee stability. In addition to the changes in the disability picture and rating criteria for the knees, the Board finds an additional examination is necessary to address deficiencies in the prior examiner's retrospective assessments of the instability. The examiner did not provide an adequate assessment of the severity of the instability according to applicable rating criteria. The examiner found the clinical, objective evidence did not support a finding the Veteran experienced instability. However, the pertinent rating criteria does not require objective evidence of knee instability, and the examiner's opinion lacks adequate discussion of the Veteran's lay statements about experiencing instability. See English v. Wilkie, 30 Vet. App. 347 (2018). For example, on the Veteran's March 2016 Appeal to Board of Veterans' Appeals, the Veteran noted his left knee gave out, which caused him to fall. VA should ensure the new examination addresses this relevant evidence, provides an explanation for the Veteran's symptoms including falling, and provides adequate rationale to rate any knee instability according to the pertinent rating criteria to the extent possible. In the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims held, in substance, that every claim for a higher evaluation includes a claim for TDIU where the Veteran claims that his service-connected disability prevents him from working. In this case, the record raises TDIU, as the Veteran has indicated that he retired as a result of his service-connected knee disabilities. See March 2015 Notice of Disagreement. Accordingly, the Board has characterized the issues on appeal so as to include a claim for entitlement to TDIU. The Board REMANDS these matters for the following actions: 1. VA should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records, to include any outstanding records from the Veteran's private treatment providers, M.K., MD and L.J., MD. VA should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran's claims file. 2. After associating all outstanding relevant records with the Veteran's claims file, VA should afford the Veteran an additional examination of his knees. The purpose of the additional examination is to (1) assess the severity of the knee disabilities following recent knee surgeries, and (2) adequately assess the severity of the Veteran's knee disabilities including instability during the entire period on appeal. The VA knees examiner should consider and discuss the Veteran's lay statements about knee instability and provide an explanation for the Veteran's symptoms. To the extent possible, the examiner should rate the Veteran's knee instability according to the revised rating criteria effective February 7, 2021 as well as the older rating criteria to the extent that it supports awarding a higher disability rating. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). The examiner should consider and provide an explanation for the Veteran's reported symptoms including adequate rationale to rate any knee instability according to the pertinent rating criteria to the extent possible. For example, on the Veteran's March 2016 Appeal to Board of Veterans' Appeals, the Veteran noted his left knee gave out, which cause him to fall. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Duffy 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.