Citation Nr: 21063992 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 07-38 283 DATE: October 18, 2021 ORDER Entitlement to an evaluation in excess of 60 percent for a right knee meniscectomy with degenerative joint disease status post total right knee replacement on or after March 1, 2019 (excluding a temporary total evaluation from January 17, 2018, to March 1, 2019) is denied. REMANDED Entitlement to an evaluation in excess of 20 percent for a low back strain is remanded. Entitlement to an evaluation in excess of 10 percent for a right knee meniscectomy with degenerative joint disease prior to January 16, 2018, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran was assigned a temporary 100 percent evaluation for his service-connected right knee disability for the period from January 16, 2018, to March 1, 2019, based on surgery and convalescence thereafter. He is also in receipt of the maximum schedular evaluation available for his service-connected right knee disability since March 1, 2019. CONCLUSION OF LAW An evaluation in excess of 60 percent for a right knee meniscectomy with degenerative joint disease status post total right knee replacement on or after March 1, 2019, is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40-4.45, 4.68, 4.71a, Diagnostic Code 5055. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1988 to December 1995. He also had additional service in the Texas Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2007 and August 2012 rating decisions. In the April 2007 rating decision, the Regional Office (RO) reduced the evaluation assigned for the Veteran's service-connected low back disability from 20 percent to 10 percent effective from January 19, 2007. In the August 2012 rating decision, the RO continued a 10 percent evaluation for the service-connected right knee meniscectomy with degenerative joint disease. In May 2015, the Board restored a 20 percent evaluation for the service-connected low back strain effective from January 19, 2007, and remanded the issue of entitlement to an increased evaluation for a low back disability and TDIU for further development. The Veteran testified at a hearing before the undersigned Veterans Law Judge in July 2016. A transcript is of record. In July 2018, the Board remanded the case for further development. The case has since been returned to the Board for appellate review. The Board notes that the Veteran's appeal originally included the issue of entitlement to service connection for an acquired psychiatric disorder. However, in a July 2020 rating decision, the agency of original jurisdiction (AOJ) granted service connection for posttraumatic stress disorder (PTSD) and major depressive disorder. The AOJ's grant of service connection constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Therefore, that matter is no longer on appeal, and no further consideration is necessary. In an April 2020 rating decision, the RO increased the evaluation assigned for the service-connected right knee disability from 10 percent to 100 percent effective from January 17, 2018. The RO also assigned a 60 percent evaluation effective from March 1, 2019. Law and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 ; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, as is the case here, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 ; 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an evaluation in excess of 60 percent for his service-connected right knee disability on or after March 1, 2019. The Veteran is currently assigned a 60 percent evaluation effective from March 1, 2019, for his service-connected right disability, pursuant to 38 C.F.R. § 4.71a , Diagnostic Code 5055. A 60 percent evaluation is the maximum schedular evaluation available under that diagnostic code. Although Diagnostic Code 5055 does allow for a 100 percent evaluation, such an assignment is a temporary evaluation that is only available for one year immediately following a prosthetic replacement of the knee joint. The Veteran was assigned a 100 percent evaluation for a total right knee replacement from January 16, 2018, to March 1, 2019. There is also no other diagnostic code pertaining to the knee or leg that provides for an evaluation in excess of 60 percent. See 38 C.F.R. § 4.71a , Diagnostic Codes 5256-5263. Moreover, the amputation rule provides that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. See 38 C.F.R. § 4.68. The combined evaluations shall not exceed the 60 percent evaluation set forth under Diagnostic Code 5162, 5163, and 5164 for an amputation of the thigh at the middle or lower thirds; for amputation of the leg with defective stump, thigh amputation recommended; and, amputation not improvable by prosthesis controlled by natural knee action. 38 C.F.R. § 4.68. Thus, the Veteran has been assigned the maximum evaluation that can be assigned under the rating schedule for his service-connected right knee disability throughout the entire appeal period. In other words, as a matter of law, the Veteran cannot be granted an evaluation in excess of 60 percent for the disability at issue. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Veteran and his representative have not raised any other issues with regard to matter decided herein, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND On review, the Board finds that additional development is necessary prior to final adjudication of the issues on appeal. Regarding the service-connected lumbar spine disability, the Veteran was afforded a VA examination in January 2020. The examiner indicated that the examination was medically consistent with the Veteran's statement describing functional loss with repetitive use over time. The examiner further indicated that pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over a period of time. However, the examiner also stated that, "After further review of the order request, DBQ, physical exam, reported history and subjective complaints, relevant evidence of record and using my medical knowledge and expertise, there remains no basis to offer additional losses of function or motion when it comes to repeated use over time." The Veteran was also afforded a VA spine examination in September 2020 during which he reported having flare-ups. However, the examiner did provide sufficient information regarding the frequency, duration, and severity of the Veteran's flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Therefore, a remand is necessary to obtain an additional VA examination. Regarding the service-connected right knee disability prior to January 16, 2018, in a December 2020 VA medical opinion, the examiner stated that the Veteran's range of motion on passive, weight-bearing, and non-weight bearing could be estimated as equal to his active range of motion for the February 2015 VA examination. However, the examiner also indicated that the Veteran's active range of motion for his right knee forward flexion was from 0 to 140 degrees. Notably, the February 2015 examination report documented range of motion findings for flexion of 0 to 100 degrees. As such, the examiner's medical opinion appears to be based on an incomplete or inaccurate factual premise. Therefore, a remand is necessary to obtain an additional VA medical opinion. The Board also finds that the issue entitlement to TDIU is inextricably intertwined with the other claims being remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two issues are inextricably intertwined when the adjudication of one issue could have significant impact on the other issue). The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for the disorders on appeal that are not already of record. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected lumbar spine disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation The examiner should report all signs and symptoms necessary for rating the disability. In particular, the examiner should provide the range of motion in degrees for the Veteran's thoracolumbar spine. In so doing, the examiner should test the Veteran's range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. 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 clearly explain so in the report. The presence of objective evidence of pain, excess fatigability, incoordination and weakness should also be noted, as should any additional disability (including additional limitation of motion) due to these factors. The examiner should also discuss any additional functional impairment that occurs during flare-ups, including any additional limitation of motion, and after any repeated use over time. To the extent possible, he or she should address the frequency, duration, characteristics, and severity of flare-ups (through the examination findings, review of the medical records, and/or history provided by the Veteran). The examiner is specifically requested to estimate as to degrees of range of motion lost during flare-ups and/or with repeated use. If the examiner is unable to provide an opinion as to functional loss, he or she must provide an explanation in the report. Further, the VA examiner should comment as to whether range of motion measurements for active motion, passive motion, weight-bearing, and/or nonweight-bearing can be estimated for the other VA examinations conducted during the appeal period. If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should clearly explain so in the report. The examiner should also comment as to whether the functional impact of flare-ups and repeated use can be estimated for the other VA examinations conducted during the appeal period, including any additional limitation of motion in terms of degrees. If the examiner is unable to provide a retrospective opinion as to functional impact of a flare-ups and/or repeated use throughout the appeal period, he or she should clearly explain so in the report. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After any additional records are associated with the claims file, the AOJ should refer the Veteran's claims file to a suitably qualified VA examiner for a medical opinion as to the severity and manifestations of his service-connected right knee disability prior to January 16, 2018. An additional examination of the Veteran should be performed only if deemed necessary by the individual providing the opinion. The examiner is requested to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should comment as to whether ranges of motion measurements for active motion, passive motion, weight-bearing, and/or nonweightbearing can be estimated for the VA examinations conducted in April 2011 and February 2015. If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should clearly explain so in the report. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. The AOJ should conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Wulff, 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.