Citation Nr: 21065813 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 13-30 046 DATE: October 27, 2021 REMANDED Entitlement to an increased evaluation in excess of 20 percent from May 14, 2010 to June 25, 2012 for left knee degenerative joint disease is remanded. Entitlement to an increased evaluation in excess of 30 percent from June 25, 2012, exclusive of a period of temporary total evaluation for status post left knee arthroplasty is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1966 to May 1996. This matter comes before the Board of Veterans' Appeals (Board) from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The RO in Oakland, California now has jurisdiction. On June 25, 2021, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a Joint Motion for Partial Remand (JMPR) that remanded the issues of an increased evaluation of 20 percent for left knee degenerative arthritis, prior to June 25, 2012, and an increased evaluation in excess of 30 percent for left knee status post total arthroplasty, from June 25, 2012 forward, exclusive of a period of temporary total evaluation, both back to the Board for reconsideration consistent with the terms of the motion. See Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006). Pursuant to the Court's remand and Kutscherousky v. West, the Board issued a 90-day letter to the Veteran and his representative dated July 6, 2021 notifying them of their ability to submit additional evidence or argument in support of their appeal within 90 days. 12 Vet. App. 369 (1999) (per curiam); see 38 C.F.R. § 20.1304. The Veteran and his representative submitted no new evidence, and the Veteran's representative submitted an updated appellate brief on October 13, 2021. See Clark v. O'Rourke, 30 Vet. App. 92 (2018). The substance of the Court's JMPR will be discussed further in the remand section below. By way of background, in a March 2020 rating decision, the RO increased the evaluation of the left knee disability to a 100 percent temporary total evaluation effective June 25, 2012, and then to 30 percent effective August 1, 2013. See 38 C.F.R. §§ 4.29, 4.30. Additionally, in an August 2020 rating decision, the evaluation of the left knee disability was increased from 10 percent to 20 percent disabling, from May 14, 2010 to June 25, 2012. The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. The period of the temporary total evaluation from June 25, 2012 to August 1, 2013 is not on appeal and as such will not be discussed. 38 C.F.R. §§ 3.401, 4.29, 4.30. The Board remanded the issues on appeal for additional development in October 2015, December 2017, and July 2020. Based on the Court's JMPR, the issues must again be remanded. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at the RO in August 2015. A transcript of his hearing has been associated with the record. When a Veteran files a claim for an increased rating, he is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). In this case, the Veteran testified at his August 2015 hearing, when specifically asked by the undersigned VLJ, that he was not seeking a TDIU. See August 2015 Hearing Transcript, p. 9. The Board has evaluated the medical evidence since then but finds no indication the Veteran's service-connected disabilities prevent him gaining and maintaining suitable employment. The Board also notes the Veteran's combined disability rating does not currently meet schedular criteria for a TDIU. There is no further lay or medical evidence the Veteran is housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb or blindness. 38 U.S.C. §§ 1114(s), (l), (k); 38 C.F.R. § 3.350(a), (b), (i). As such, the Board will not infer the issue of further entitlement to TDIU or SMC at this time. 1. Entitlement to an increased evaluation in excess of 20 percent from May 14, 2010 to June 25, 2012, for left knee degenerative joint disease, is remanded. 2. Entitlement to an increased evaluation in excess of 30 percent from June 25, 2012, exclusive of a period of temporary total evaluation, for status post left knee arthroplasty, is remanded. The Veteran seeks higher evaluations for his service-connected left knee disabilities, from a claim for increased ratings received by VA on May 14, 2010. The left knee degenerative disease is evaluated under Diagnostic Code 5257 at 20 percent from May 14, 2010 to June 25, 2012, and under Diagnostic Code 5055 at 30 percent from June 25, 2012 forward. The Veteran has asserted that a higher evaluation is warranted in each period because of the degree of pain and physical limitations he endures on a daily basis, and that his left knee joint is painful and stiff. As noted above, the Court partially vacated and remanded the Board's August 2020 decision, with respect to the increased ratings for each left knee period beginning from May 2010. The Court allowed the Board's grant of a higher 20 percent rating for the left knee from May 14, 2010 to June 25, 2012 to stand. The Court, in its Joint Motion for Partial Remand (JMPR), called attention to the August 2010, March 2016, May 2018, and February 2020 VA examinations and reports, upon which the Board relied for its decision. No. 20-8028, 2021 U.S. App. Vet. Claims (Jun. 25, 2021) (unpublished). In its JMPR decision of June 2021, the CAVC called attention to its precedential decision from 2017 that addresses what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. In the instant CAVC decision regarding this Veteran's appeal, the CAVC noted that if the pertinent VA examiners from August 2010, March 2016, May 2018, and February 2020 could not provide such an opinion without resort to speculation, the examiner was required to state the same while also identifying the basis for that view, including the lack of specific facts or the limits of medical knowledge. Id. Similarly, the May 2018 VA examination of Veteran's knees included his statement that his flareups caused pain and difficulty walking, and occurred between once a week and once a month depending on the season. Despite these statements, the examiner stated that he could not offer opinions on the functional loss the Veteran would suffer during flare-ups or with repetitive use, while failing to identify the facts necessary to render a non-speculative opinion. The Court continued, noting that the Board relied on those August 2010, March 2016, May 2018, and February 2020 examinations for its evaluation for the Veteran's knee disabilities for both the pre- and post-June 2012 time periods on appeal. Since the Court considered those VA examinations to be inadequate for rating purposes, remand was therefore required to obtain new, adequate medical examinations, to include retrospective opinions as necessary to appropriately evaluate the Veteran's left knee disabilities since May 2010. As mentioned previously, the Veteran is rated under Diagnostic Code 5257 for his left knee instability prior to June 25, 2012, and under Diagnostic Code 5055 after June 25, 2012, due to his left knee total arthroplasty that date. The Board notes that the diagnostic code rating criteria for both those diagnostic codes have changed, as outlined in 38 C.F.R. § 4.71a, among other criteria for the musculoskeletal system and muscle injuries, effective on February 7, 2021, shortly after the issuance of the previous Board remand. See 38 C.F.R. § 4.71a (changes to take effect Feb. 7, 2021); 85 Fed. Reg. 76453 (Nov. 30, 2020). Because the Veteran's claim originated prior to this change, the RO is reminded that either the old criteria or the new criteria can be used, whichever is more favorable to the Veteran. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). In Chotta v. Peake, the CAVC explained that the duty to assist requires VA to assess whether a disability can be rated based upon the available evidence. 22 Vet. App. 80, 84 (2008). If a disability rating "cannot be awarded based on the available evidence," VA must determine whether a medical opinion, including a retrospective opinion, "is necessary to make a decision on the claim." Id. at 85. The matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any updated private or VA medical records identified and authorized for release by the Veteran. 2. After completion of the above, schedule the Veteran for a VA examination with a VA medical professional with expertise in orthopedics to determine the current nature and severity of his left knee disabilities, to include all orthopedic and neurological manifestations. The claims folder must be made available to the examiner in conjunction with the examination. Any appropriate evaluations, studies, and testing deemed necessary by the examiner, to include appropriate imaging, should be conducted. The examiner should inquire of the Veteran as to periods of flare-ups, and note the frequency and duration of any flare-ups during the period on appeal. The examiner must estimate the effect of all functional losses, including due to flare-ups, by equating the disability experienced due to such losses to additional loss of motion (stated in degrees) beyond what is shown clinically. In addition to the evaluation on the current state of the Veteran's left knee, the examiner must provide a retrospective opinion relying on earlier examinations and any available medical records to provide an estimate of the frequency, duration, characteristics, severity, and/or functional loss of the Veteran's flare-ups of his left knee disabilities from May 2010 forward. The examination should be conducted in accordance with the current disability benefits questionnaire and consistent with Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Court explained that case law and VA guidelines anticipate that examiners will offer flare opinions based on estimates derived from information procured from relevant sources, including lay statements of veterans, to ascertain adequate informationi.e., frequency, duration, characteristics, severity, or functional lossregarding his flares by alternative means. An examiner must do all that reasonably should be done to become informed before concluding that a requested opinion cannot be provided without resorting to speculation. When considering the evaluation, the examiner is to carefully consider all lay statements of record, VA treatment records, and private treatment records and evaluations, to include retrospectively as necessary. The examiner should view the Veteran as a reliable historian as to his service and his reports of his activities and symptoms in and since service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Pursuant to the CAVC's remand in this case, the examiner is specifically requested to explain his/her reasoning behind any assessment of the Veteran's knee disabilities that go to the evaluation under the ratings criteria. For both the VA medical examiner assigned this examination and the RO adjudicator who will address this appeal, attention is invited to the updated ratings criteria for the knee, among other changes in criteria for musculoskeletal system and muscle injuries, in 38 C.F.R. § 4.71a that took effect February 7, 2021. 3. Thereafter, readjudicate the issue on appeal. Attention is invited to the revised 38 C.F.R. § 4.71a criteria for musculoskeletal disabilities, including the Veteran's left knee, and the Veteran should receive the benefit of whatever criteria, old or revised, that provides a greater rating. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Setter, 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.