Citation Nr: 21064677 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 10-09 894 DATE: October 21, 2021 REMANDED Entitlement to a disability evaluation in excess of 10 percent for service-connected left knee medial meniscus tear and chondromalacia prior to July 23, 2018, is remanded. Entitlement to a disability evaluation in excess of 10 percent for service-connected right knee retropatellar pain syndrome with degenerative arthritis prior to July 23, 2018, is remanded. Entitlement to a disability evaluation in excess of 10 percent for service-connected right knee instability effective January 2, 2020, to August 1, 2021, is remanded. Entitlement to a disability evaluation in excess of 10 percent for service-connected left knee anterior instability effective January 2, 2020, to August 1, 2021, is remanded. Whether the rating reduction from 20 percent to 10 percent for service-connected left knee medial meniscus tear and chondromalacia effective August 1, 2021, was proper is remanded. Whether the rating reduction from 20 percent to 10 percent for service-connected right knee retropatellar pain syndrome with degenerative arthritis effective August 1, 2021, was proper is remanded. Whether the rating reduction from 10 percent to 0 percent for service-connected right knee instability effective August 1, 2021, was proper is remanded. Whether the rating reduction from 10 percent to 0 percent for service-connected left knee anterior instability effective August 1, 2021, was proper is remanded. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1985 to August 2000. The issue of entitlement to a disability evaluation in excess of 10 percent for service-connected left knee medial meniscus tear and chondromalacia prior to July 23, 2018, is before the Board of Veterans' Appeals (Board) on appeal from a September 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The issue of entitlement to a disability evaluation in excess of 10 percent for service-connected right knee retropatellar pain syndrome is before the Board on appeal from a January 2009 rating decision issued by the RO. The issues of entitlement to disability evaluations in excess of 10 percent prior to August 1, 2021, for service-connected right knee instability and left knee anterior instability are before the Board as such ratings were granted in March 2020 and April 2020 rating decisions issued by the RO as part and parcel of his increased ratings claims. In March 2021, the RO proposed to reduce the Veteran's ratings for his aforementioned bilateral knee disabilities. In May 2021, the RO finalized the reductions to take effect August 1, 2021. Accordingly, as these reductions are part and parcel of the increased ratings claims on appeal, the Board will address these issues in this decision. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The Board denied the issues of entitlement to disability evaluations in excess of 10 percent for the Veteran's left knee medial meniscus tear and chondromalacia prior to July 23, 2018, right knee retropatellar pain syndrome with degenerative arthritis prior to July 23, 2018, right knee instability, and left knee anterior instability, in a September 2020 decision. The Veteran timely appealed this matter to the United States Court of Appeals for Veterans Claims (Court). By way of a May 2021 Order, the Court granted a Joint Motion for Partial Remand (JMPR) filed by both parties. The case has now returned to the Board. As a preliminary matter, the Board notes that, in the JMPR, the parties agreed that the Veteran did not contest the Board's denial of entitlement to service connection for a left ankle condition; a rating in excess of 20 percent for service-connected right knee retropatellar pain syndrome from July 23, 2018, forward; or a rating in excess of 20 percent for service-connected left knee medial meniscus tear and chondromalacia from July 23, 2018, forward. Therefore, the Board will not address these issues. 1. Entitlement to a disability evaluation in excess of 10 percent for service-connected left knee medial meniscus tear and chondromalacia prior to July 23, 2018, is remanded. 2. Entitlement to a disability evaluation in excess of 10 percent for service-connected right knee retropatellar pain syndrome with degenerative arthritis prior to July 23, 2018, is remanded. 3. Entitlement to a disability evaluation in excess of 10 percent for service-connected right knee instability prior to August 1, 2021, is remanded. 4. Entitlement to a disability evaluation in excess of 10 percent for service-connected left knee anterior instability prior to August 1, 2021, is remanded. In the JMPR, the parties agreed that the Veteran's examinations of record, including the February 2015, February 2018, and January 2020 examinations, did not comply with the Court's holding in Correia v. McDonald, which requires examiners to test and provide results for range of motion in active motion, passive motion, with weight-bearing and nonweight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). Accordingly, the Board finds that a retrospective opinion regarding the Veteran's bilateral knee disabilities should be obtained regarding the requirements set forth in Correia. See Chotta v. Peake, 22 Vet. App. 80 (2008). Furthermore, the Veteran noted experiencing flare-ups in his July 2008 VA examination. Since that time, the Court has ruled that examiners, when inquiring about flare-ups, if the answer is yes, to elicit information as to the severity, frequency, and duration in addition to precipitating and alleviating factors of said flare-ups, and to opine on additional functional limitation caused by the Veteran's flare-ups either in terms of range of motion or an approximate estimate. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Thus, a retrospective opinion should also be obtained regarding the nature and severity of the Veteran's noted flare-ups prior to July 2018. Additionally, the Board notes that the Veteran's private medical records indicate changes in the Veteran's range of motion, but do not provide the measurements taken. See March 2008 El Paso Orthopaedic Surgery Group and Center for Sports Medicine Records. On remand, the Board requests that additional information be obtained as to the range of motion measurements taken in March 2008, if possible. Regarding the Veteran's claims for bilateral knee instability, the parties also agreed in the JMPR that the Veteran's lay assertions that his knees were prone to buckling prior to January 2, 2020, (the effective date of the awards of separate ratings for instability) were not considered, as the Veteran himself told his private provider in March 2008 that he would have buckling and locking occasionally. See March 2008 El Paso Orthopaedic Surgery Group and Center for Sports Medicine Records. Therefore, a retrospective opinion should be obtained as to whether the Veteran's bilateral knee instability began prior to January 2, 2020. 5. Whether the rating reduction from 20 percent to 10 percent for service-connected left knee medial meniscus tear and chondromalacia effective August 1, 2021, was proper is remanded. 6. Whether the rating reduction from 20 percent to 10 percent for service-connected right knee retropatellar pain syndrome with degenerative arthritis effective August 1, 2021, was proper is remanded. 7. Whether the rating reduction from 10 percent to 0 percent for service-connected right knee instability effective August 1, 2021, was proper is remanded. 8. Whether the rating reduction from 10 percent to 0 percent for service-connected left knee anterior instability effective August 1, 2021, was proper is remanded. Because readjudication could result in higher disability evaluations in effect for longer than previously noted in the record, the Board finds that the issues of whether the above-mentioned ratings reductions were proper are inextricably intertwined with the increased ratings issues. Harris, 1 Vet. App. at 183. Consequently, since the Board is remanding the issues of increased disability evaluations, the Board must also remand the issues of whether the ratings reductions effective August 1, 2021, were proper. 9. Entitlement to a TDIU is remanded. Here, the Board notes that the Veteran's various VA examinations of record indicate a negative impact of his bilateral knee disabilities, including instability, on his ability to work. See February 2018 VA C&P Examination; July 2018 VA C&P Examination. As such, the Board finds that the issue of entitlement to a TDIU due to the Veteran's service-connected disabilities is reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009); see also 38 C.F.R. §§ 3.340, 4.16. The issue of TDIU is part and parcel of the increased ratings claims and thus is before the Board via the appeal of those issues. Rice, 22 Vet. App. at 453. Although raised by the evidence, the claim for a TDIU has not been addressed by the Agency of Original Jurisdiction (AOJ). Therefore, the Board finds that additional development is necessary before his claim for entitlement to a TDIU can be adjudicated. The matters are REMANDED for the following action: 1. Request from El Paso Orthopaedic Surgery Group and Center for Sports Medicine the range of motion measurements taken in evaluating the Veteran in March 2008. If authorization is required from the Veteran before said clarification should be provided, the authorization should be obtained. The Veteran should also be invited to produce the record of range of motion measurements taken himself. All actions to obtain the requested measurements should be fully documented in the claims file. If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing. 2. Subsequently, forward the claims file to a clinician with the appropriate expertise to determine the nature and severity of the Veteran's left knee medical meniscus tear and chondromalacia, right knee retropatellar pain syndrome, right knee instability, and left knee anterior instability, for the appellate period prior to July 23, 2018, (for the left knee medial meniscus tear and chondromalacia and right knee retropatellar pain syndrome) and January 2, 2020 (for the right knee instability and left knee anterior instability). Based on review of the claims file, including the Veteran's VA and private medical records and lay statements regarding buckling and locking, the clinician should render an opinion addressing whether, at any point prior to July 23, 2018, the record reflects any change(s) in the severity of the Veteran's left knee medial meniscal tear and chondromalacia and right knee retropatellar pain syndrome, and, if so, the approximate date(s) of any such change(s), including the degrees of additional range of motion lost during flare-ups, if possible and range of motion measurements for active motion, passive motion, and in weight-bearing and nonweight-bearing. If the clinician cannot provide this retrospective estimate, the clinician should state why and provide a reasoned explanation for the determination. Based on review of the claims file, including the Veteran's VA and private medical records and lay statements regarding buckling and locking, the clinician should render an opinion addressing whether, at any point prior to January 2, 2020, the record reflects evidence of bilateral knee instability, and, if so, the approximate date(s) of such instability being found. If the clinician cannot provide this retrospective opinion, the clinician should state why and provide a reasoned explanation for the determination. 3. Thereafter, readjudicate the following issues: (a) Entitlement to a disability evaluation in excess of 10 percent prior to July 23, 2018, for service-connected left knee medial meniscal tear and chondromalacia and right knee retropatellar pain syndrome; (b) Entitlement to a disability evaluation in excess of 10 percent for right knee instability and left knee anterior instability prior to January 2, 2020; and (c) Whether the rating reductions effective August 1, 2021, for left knee medical meniscal tear, right knee retropatellar pain syndrome, right knee instability, and left knee anterior instability, were proper. 4. The RO should send the Veteran a formal application for TDIU (VA Form 21-8940) and request him to complete and return the form. 5. When the completed VA Form 21-8940 has been submitted by the Veteran, or after a reasonable time has been provided for him to complete and return the form, and after conducting any additional development that may be warranted as determined by the AOJ, adjudicate the issue of entitlement to a TDIU. 6. If any of the above-sought benefits remain denied, the RO should issue a Supplemental Statement of the Case (SSOC) to the Veteran and his representative. An appropriate period of time should be allowed for response before returning the appeal to the Board. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Hoffman 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.