Citation Nr: 21064599 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 12-16 837 DATE: October 20, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent from March 10, 2010 for right total knee arthroplasty (excluding a period of temporary 100 percent disability from February 20, 2020 to March 31, 2021), and a rating in excess of 30 percent from April 1, 2021 is remanded. Entitlement to an initial rating in excess of 10 percent for right knee instability from March 10, 2010 to February 20, 2020 is remanded. Entitlement to an initial rating in excess of 10 percent from March 10, 2010 for left total knee replacement (excluding a period of temporary 100 percent disability from June 18, 2020 to August 31, 2021), and a rating of 30 percent from September 1, 2021 is remanded. Entitlement to an initial rating in excess of 20 percent for left knee osteoarthritis from March 10, 2010 to June 18, 2020 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from July 1988 to May 1996. This matter is on appeal to the Board of Veterans' Appeals (Board) from an October 2010 rating decision of a regional office of the Department of Veterans Affairs (VA), which granted service connection for right and left knee disabilities. The matter was previously remanded by the Board in January 2014, March 2015, and most recently in March 2021 for additional evidentiary development. Right Knee and Left Knee Disability For the reasons explained below, another remand is warranted. First, remand is necessary to ensure compliance with the Board's recent March 2021 remand directive. Stegall v. West, 11 Vet. App. 268, 271 (1998). After associating outstanding VA treatment and private treatment records, the Board instructed further develop be conducted, "to include providing a VA examination, if warranted." On review of the additional information, the Board finds that a VA examination should have been afforded. Specifically, the Veteran's VA treatment records of March 2021 clearly show his reports of ongoing chronic knee pain. The treating physician at the time noted Veteran's report of "[bilateral] knee pain after he had [bilateral] knee replacement one in 2/2020 and second in 7/2020, but he still has pain in both knee joint with cracking feeling on walking" and pain with increased movement. Second, the Veteran was last afforded a VA examination in August 2015. Critically, no examination has been afforded to evaluate the current severity of his knee disability since the total knee replacement surgeries in 2020. Thus, a reexamination is necessary. Additionally, the Board notes that the Court in Sharp v. Shulkin, 29 Vet. App. 26 (2017) emphasized additional requirements that must be met for examinations to be adequate. The Court stated that examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from a veteran, including during flare-ups. The examiner should estimate a veteran's functional loss due to flare-ups based on all the evidence of record, including the lay information, or sufficiently explain why the examiner cannot do so. Accordingly, a reexamination in compliance with current case law is needed. Next, in granting a temporary total evaluation assigned under Diagnostic Code (DC) 5055 for left and right total knee replacement, the AOJ discontinued the previous ratings for osteoarthritis and instability. The Board observes that the Veteran's right total knee arthroplasty is rated appropriately under DC 5055, rather than based on arthritis, as this code contemplates "intermediate degrees of residual weakness, pain, or limitation of motion". Moreover, DC 5055 provides the Veteran a minimum rating of 30 percent for right knee, which is also the highest available rating that the Veteran would receive for a knee disability if evaluated under Diagnostic Code 5260 for limited flexion. See 38 C.F.R. § 4.71a, Diagnostic Codes 5055, 5260. However, in granting a temporary total evaluation for the Veteran's left knee disability, the AOJ recharacterized the disability as left total knee replacement and discontinued the separate assignment for DC 5257 (previously rated as left knee instability). The Board observes that the AOJ has not provided explanation as to why the separate rating for left knee instability under DC 5257 was discontinued. See Supplemental Statement of the Case (SSOC) dated April 2021. Rather than refer this issue to the AOJ for appropriate action, the Board finds that the correct remedy here is to remand as the explanation for assigned evaluations for the left knee is inextricably intertwined with the underlying increased rating issues herein. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Finally, 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. 85 Fed. Reg. 230 (Nov. 30, 2020). The Veteran's bilateral knee disabilities are currently rated under DC 5055. Because the record does not contain sufficient evidence to rate the Veteran's disability under the new rating criteria, a new examination is warranted. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected bilateral knee disabilities. All required tests should be performed. The electronic claims file should be accessible to the examiner in connection with the examination. The examiner must consider all signs and symptoms necessary for evaluating the disability under the rating criteria as indicated by the relevant Disability Benefits Questionnaire (DBQ). An explanation for all opinions expressed must be provided. 2. Forward the claims file to the December 2019 medical professional or an appropriate medical professional to provide an addendum opinion. The Veteran's claims file must be made available to the examiner along with any other information the medical professional deems pertinent. If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. The examiner should evaluate the disability under the revised criteria for Diagnostic Code 5055. See 38 C.F.R. § 4.71a were amended effective February 7, 2021. The examiner should determine whether the Veteran experiences flare-ups and to the extent possible estimate any additional functional loss caused by the Veteran's flare-ups. In addition, if possible, elicit from the Veteran all signs and symptoms of the right knee disability throughout the pendency of the appeal from March 2010, forward. In so doing, obtain information from the Veteran (and the treatment records) as to the frequency, duration, characteristics, severity, or functional loss with any repetitive use or during any flare-ups If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner is asked to consider prior VA examination of August 2015 and private treatment records showing right total knee arthroplasty of February 2020 and address any conflicting medical and lay evidence of record. An explanation for all opinions expressed must be provided. 3. Upon completion of the requested development and any additional development deemed appropriate, adjudicate the claims on appeal. In particular, adjudicate the inextricably intertwined issue of the assignment of a rating under Diagnostic Code 5055 for left knee total knee replacement and discontinuance of separate rating for instability under Diagnostic Code 5257. If the determination remains unfavorable to the Veteran and his representative should be furnished a SSOC which addresses all relevant evidence. The Veteran and his representative should be afforded the applicable time period in which to respond. Then, return the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A., 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.