Citation Nr: 21063867 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 06-28 168 DATE: October 18, 2021 REMANDED Entitlement to higher staged ratings for a left knee disorder, to include a rating in excess of 10 percent for left knee patellofemoral syndrome and a 20 percent rating for episodes of locking, pain, and effusion in the left knee joint prior to July 15, 2004, is remanded. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from November 1992 to July 1997. These matters come before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA). These matters were previously before the Board in November 2011, February 2017, February 2018, and November 2018. In November 2018, the Board denied a rating in excess of 10 percent for left knee patellofemoral syndrome, a higher staged rating of 20 percent for left knee dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion prior to July 15, 2004, and a TDIU prior to September 24, 2014. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In November 2019, the Court granted a Joint Motion for Partial Remand (JMPR). The parties agreed that the Board did not procure a medical opinion compliant with the holdings in Sharp v. Shulkin, 29 Vet. App. 26 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016), did not consider evidence supportive of a separate rating for instability under 38 C.F.R. § 4.71a, DC 5257, and did not discuss the meaning of "sedentary employment" or adequately address the Veteran's medical, vocational, and educational history in regard to a TDIU. Thereafter, in July 2020, the Board remanded the issues on appeal for additional development. Entitlement to higher staged ratings for a left knee disorder, to include a rating in excess of 10 percent for left knee patellofemoral syndrome and a 20 percent rating for episodes of locking, pain, and effusion in the left knee joint prior to July 15, 2004, is remanded. Entitlement to a TDIU is remanded. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. See 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. As highlighted in the November 2019 JMPR, the April 2018 VA examination reflected objective evidence of instability and the evidence of record shows the Veteran reported left knee instability and giving out. The August 2017 VA examination also reflected objective evidence of instability. VA examinations in February 2008, April 2010, August 2017, April 2018, and January 2021 (Receipt Date: February 2021) noted the Veteran's use of cane and knee brace. See February 2008 VA Examination, April 2010 C&P Exam, August 2017 C&P Exam, April 2018 C&P Exam, and February 2021 C&P Exam. VA regulations have recently changed with respect to musculoskeletal conditions and, in particular, as relevant here, instability of the knee. Review of the record indicates the Veteran's left knee was last afforded VA examination in January 2021 and does not contain sufficient findings to evaluate his knee disability under the revised criteria. Moreover, while the Veteran has been noted on multiple VA examinations to use a knee brace and cane, the record does not reflect if use of these devices is prescribed by a medical provider. As such, remand for a new VA examination is necessary in order to adequately rate the Veteran's service-connected left knee disability. The claim of TDIU is inextricably intertwined with the claim for higher staged ratings for the left knee disability, and will be addressed upon completion of the requested development. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain any outstanding VA and identified private treatment records. 2. Thereafter, schedule the Veteran for a VA examination regarding the nature and severity of his left knee disability. The evaluation should document findings consistent with the February 2021 amended diagnostic codes for evaluating musculoskeletal disabilities. The examiner must review all pertinent documents in the record. (Continued on the next page) The examiner should notate whether the Veteran uses a knee brace and cane that has been prescribed to him by a medical provider due to his service-connected left knee. 3. Then, readjudicate the remaining issues on appeal, to include the claim for TDIU. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Cheng, 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.