Citation Nr: 21064719 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 13-04 051 DATE: October 21, 2021 ORDER A separate 10 percent rating for slight instability as residual of right patella fracture is granted. REMANDED Entitlement to increased rating for residuals of right patella fracture is remanded. Entitlement to compensation for total disability based on individual unemployability (TDIU) due to service-connected disability prior to January 31, 2013, is remanded. FINDING OF FACT The evidence supports that the right knee disability includes slight instability. CONCLUSION OF LAW The criteria for a separate 10 percent rating for slight instability as residual of right patella fracture have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.10, 4.71a, Diagnostic Code 5257 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from October 1956 to April 1969. 1. A separate 10 percent rating for slight instability as residual of right patella fracture (right knee) The Veteran currently receives a 10 percent rating for painful knee joint under Diagnostic Code 5260. See February 2010 rating decision. Separate ratings may be assigned for limitation of motion under Diagnostic Codes 5260/5261 and instability under Diagnostic Code 5257. See VAOPGCPREC 23-97 (1997), VAOPGCPREC 9-98 (1998). The Board notes that Diagnostic Code 5257, which contemplates knee impairment with recurrent subluxation or lateral instability, was amended by the new regulations effective February 7, 2021, and claims pending prior to the effective date of a change in regulation will be considered under both old and new rating criteria with the more favorable criteria applied to the veteran. As the prior version of the Diagnostic Code 5257 is more favorable to the Veteran, the Board will only discuss the prior version. For claims filed prior to February 7, 2021, knee impairment with recurrent subluxation or lateral instability is rated 10 percent when slight, 20 percent when moderate, and 30 percent when severe. 38 C.F.R. § 4.71a, DC 5257. After reviewing the record, the Board finds the criteria for a separate rating for slight instability of the right knee have been met. See 38 C.F.R. § 4.71a, DC 5257. The Veteran has consistently reported the knee giving way and leading to falls throughout the period on appeal. See VA examinations and treatment records. The February 2012, January 2020, and May 2021 examiners noted the use of a brace and cane for the right knee. The Board finds these lay reports of the knee giving way and corroborative evidence of the use of the brace and cane for the knee evidence slight instability to warrant a separate 10 percent rating under Diagnostic Code 5257. REASONS FOR REMAND 1. Entitlement to increased rating for residuals of right patella fracture is remanded. 2. Entitlement to compensation for TDIU prior to January 31, 2013, is remanded. The Board remanded the appeal for an increased rating for the right knee in May 2017, denied the appeal in June 2019, and again remanded the appeal in March 2021 after it was returned by the Court of Appeals for Veterans' Claims. Unfortunately, additional remand is needed. First, although the Agency of Original Jurisdiction (AOJ) granted TDIU compensation effective January 31, 2013, the issue of entitlement to TDIU is considered part and parcel of the Veteran's knee appeal, which began in September 2009. Therefore, the issue of entitlement to TDIU prior to January 31, 2013, is still on appeal. See Harper v. Wilkie, 30 Vet. App. 356 (2018). Next, additional records relevant to both issues are outstanding. The record shows the Veteran receives disability from the Social Security Administration. Those records should be obtained and associated with the claims file. Finally, regarding the knee, a medical opinion is needed. As discussed above, there is evidence of instability associated with the right knee. However, there is also evidence of weakness and other symptoms associated with a back disability with lower extremity radiculopathy that are not subject to service connection. Specifically, the February 2012 examiner explained that the Veteran has a co-morbid lumbar spine degenerative condition that is largely responsible for the gait and mobility deficits seen. VA treatment records show disuse atrophy of both quadriceps and lumbar radiculopathy in both lower extremities associated with very limited ambulation and use of a scooter. A medical opinion is needed to determine the extent and severity of instability attributable to the right knee disability. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. Obtain and associate with the claims file any of the Veteran's records from the Social Security Administration. 3. Request a medical opinion on the Veteran's right knee disability. An examination should be scheduled if deemed necessary by the expert to render the requested opinion. The medical expert should review the claims file and address the extent to which the Veteran's right knee disability causes instability and whether such would be described as slight, moderate, or severe. The expert should consider the evidence of lumbar radiculopathy and disuse atrophy and explain whether symptoms can be clearly attributed to one condition over the other. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.P. Armstrong 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.