Citation Nr: 21063533 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 17-15 278 DATE: October 14, 2021 REMANDED Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease (DJD) of the right knee is remanded. Entitlement to an initial disability rating in excess of 10 percent prior to July 11, 2014, a compensable disability rating from July 11, 2014 to October 25, 2018, and a disability rating in excess of 20 percent thereafter for right knee instability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 2002 to July 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a May 2021 statement, the Veteran, through his attorney, withdrew his request for a Board hearing. Therefore, his request is considered withdrawn and the Board may proceed with adjudication of the claims. 38 C.F.R. §§ 20.702(e), 20.704(e). 1. Entitlement to an initial disability rating in excess of 10 percent for DJD of the right knee is remanded. 2. Entitlement to an initial disability rating in excess of 10 percent prior to July 11, 2014, a compensable disability rating from July 11, 2014 to October 25, 2018, and a disability rating in excess of 20 percent thereafter for right knee instability is remanded. 3. Entitlement to TDIU is remanded. The Veteran is seeking higher disability ratings for his right knee DJD and instability. Specifically, the Veteran contends his right knee disabilities are more severe than reflected by his assigned disability ratings. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. In Correia v. McDonald, 28 Vet. App. 158, 169- 170 (2016), the United States Court of Appeals for Veterans Claims (Court) held that an adequate VA examination of the joints must, wherever possible, include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and with range-of-motion measurements of the opposite undamaged joint. In this case, the Veteran was afforded a VA examination to evaluate his knee disabilities in November 2018. On examination, the VA examiner noted pain on passive range of motion and on non-weightbearing range of motion; however, the examiner failed to document the degree at which the Veteran experienced pain during range of motion testing. The Court has held that diagnostic codes predicated on limitation of motion require consideration of a higher rating based on functional loss due to pain on use or due to flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.59; Johnson v. Brown, 9 Vet. App. 7 (1997); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). As such, the Board is unable to make an informed determination regarding the severity of any functional loss associated with the Veteran's right knee without information regarding the extent range of motion is affected by pain on passive range of motion testing and on non-weightbearing testing. Remand for a new VA examination is required. Effective February 7, 2021, several changes to the diagnostic codes used for rating disabilities of the knees were made. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 38 C.F.R. § 4.71a, Diagnostic Code 5257. When a law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeals process has been concluded, the version of the law or regulation most favorable to the appellant generally applies. Only the former criteria can be applied for the period prior to the effective date of the new criteria. However, both the old and new criteria can be applied as of that date. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114. There is evidence that the new criteria are relevant to the Veteran's claim for an increased disability rating for right knee instability. As such, the matter is remanded to afford the Veteran a VA examination that contains the appropriate testing results in order to appropriately rate the severity of his disability. Consideration of entitlement to TDIU is dependent upon the impact of service-connected disabilities on a veteran's ability to obtain or retain substantially gainful employment. The matter of TDIU is therefore inextricably intertwined with the increased rating claims for the Veteran's right knee disabilities, as well as increased rating claims for left knee and back disabilities that are pending under the Appeals Modernization Act (AMA) review system. Harris v. Derwinski, 1 Vet. App. 180 (1991). Remand of the inextricably intertwined TDIU claim is therefore required as well. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA medical examination to assess the orthopedic manifestations of his right knee disabilities. The Veteran's electronic claims file must be made available for review. All testing deemed necessary to rate the Veteran's right knee disabilities under the criteria of the VA rating schedule must be conducted and the results reported in detail. The amended criteria pertaining to knee disabilities in effect from February 21, 2021, as well as the former criteria, should be considered. The examiner should test the range of motion in active motion, passive motion, weight-bearing, and non-weightbearing. The examiner is asked to indicate the point during range-of-motion testing that motion is limited by pain; it is not sufficient merely to indicate whether or not pain was present during one of the required range of motion tests. Testing should be conducted, and results provided, for the opposite joint, unless the opposite joint is damaged. If the opposite joint is determined to be damaged, and no range of motion testing is conducted, this must be explained in the report. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should explain why. The examiner should describe the extent of any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology and/or is evidenced by visible behavior such as facial expression or wincing. The examiner should express an opinion as to whether pain or other manifestations during flare-ups or with repeated use could significantly limit functional ability of the affected part. The examiner should portray the degree of any additional range-of-motion loss due to pain on repeated use or during flare-ups. If no estimate can be provided, the examiner should provide a sufficiently detailed explanation as to why. A rationale for the opinions in the examination report must be provided. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, furnish the Veteran and his attorney a supplemental statement of the case (SSOC) and return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Silverblatt, 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.