Citation Nr: 21068062 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 14-42 287 DATE: November 9, 2021 REMANDED Entitlement to a rating in excess of 20 percent for myositis ossificans of the left thigh, status post left thigh trauma, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from January 1986 to May 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran's former attorney withdrew representation in June 2016 and informed the Veteran of the withdrawal. See June 2016 Motion for Withdrawal (providing good cause for withdrawal and containing a signed certification that a copy of the motion was sent to the Veteran's current address of record by first-class mail, postage prepaid); January 2017 Notification Letter (acknowledging the attorney's withdrawal). See also 38 C.F.R. § 20.6(a)(2) (formerly 38 C.F.R. § 20.608 (b)(2) (2015)) (providing that a representative may not withdraw representation without good cause shown on motion, accompanied by a "signed statement certifying that a copy of the motion was sent by first-class mail, postage prepaid, to the appellant, setting forth the address to which a copy was mailed"). As no other representative has been appointed, the Veteran is unrepresented at this time. Finally, the Board notes that the Veteran testified at a Board hearing in April 2018; however, a transcript of that proceeding could not be produced due to technical difficulties with the audio recording system. An April 2019 letter informed the Veteran of this fact and he was offered the opportunity to testify at another hearing. The following month, the Veteran elected to appear at another Board hearing. See May 2018 Hearing Election Letter. In July 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ); however technical difficulties again prevented a transcript of the hearing from being obtained. The Veteran was notified and elected to appear for a third hearing. See July 2018 Hearing Election Letter. The Veteran was scheduled to appear for yet another Board hearing in June 2019, but this hearing was postponed. See April 2019 Notification Letter. The hearing was rescheduled for October 2019, but the Veteran failed to appear. See September 2019 Notification Letter. The hearing was rescheduled again in September 2021, but the Veteran again failed to appear. See June 2021 Notification Letter. He has not since requested another hearing. Accordingly, his request for a Board hearing is deemed withdrawn. See 38 C.F.R. § 20.704(d). 1. Entitlement to a rating in excess of 20 percent for myositis ossificans of the left thigh, status post left thigh trauma, is remanded. Additional development is necessary with regard to the claim. Although the Board sincerely regrets the delay, it is necessary to ensure that there is a complete record upon which to decide the claim so that it is afforded every possible consideration. The Veteran was last provided a VA examination addressing the nature and level of severity of his service-connected left thigh myositis ossificans in June 2011. See June 2011 VA Compensation and Pension (C&P) Joints Examination. See also January 2013 VA Hip and Thigh Conditions DBQ (addressing the left thigh myositis ossificans only to the extent that the Veteran was claiming bilateral hip disorders as secondary to the service-connected left thigh condition). In an August 2015 statement, the Veteran's then-representative stated that his left thigh symptoms were increasing in severity and that his condition had continued to progress in the years since that examination. See August 2015 Statement of Accredited Representative (VA Form 646). Accordingly, considering that more than 10 years have passed since the Veteran was last provided a VA examination for his service-connected left thigh myositis ossificans, and given the evidence suggesting that this condition has increased in severity in the intervening years, VA's duty to assist requires that the Veteran be provided a contemporaneous examination to fully and fairly evaluate his service-connected left thigh myositis ossificans. See 38 C.F.R. § 3.327 (a) (providing that reexaminations will be requested whenever VA needs to determine the current severity of a disability). See also Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505-06 (1998) ("Where the record does not adequately reveal the current state of the claimant's disability... the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination."). See, too, Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining that the Board should have ordered a contemporaneous examination of the Veteran because a 23-month-old examination was too remote in time to adequately support the decision in an appeal for an increased rating). Additionally, the Veteran's service-connected left thigh pathology is currently evaluated under 38 C.F.R. § 4.71a , Diagnostic Code 5023-5257, pertaining to myositis ossificans and rated on the provisions regarding knee subluxation and/or instability. See May 2015 Rating Decision Codesheet. See also 38 C.F.R. § 4.27 (providing that hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen). In this regard, the Board notes that, effective February 7, 2021, a new rating formula for knee subluxation and instability applies to Diagnostic Code 5257. See 85 Fed. Reg. 76453 (Nov. 30, 2020). These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and the more veteran-favorable criteria will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective date of the new regulation if the prior version was in effect during the pendency of the appeal. As such, in light of the foregoing and because the record does not contain sufficient evidence to evaluate the Veteran's disability under the new rating criteria, remand for reevaluation is necessary. 2. Entitlement to a TDIU is remanded. The Board notes that the Veteran maintained that he was unable to maintain gainful employment due to his left thigh disability. Thus, the Board finds that the issue of entitlement to a TDIU has been reasonably raised by the record and has been added to appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453, 54 (2009) (holding that a request for a TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation); see also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (holding that a separate, formal claim is not required in cases where an informal claim for TDIU has been reasonably raised). There is evidence of record indicating that the Veteran may be precluded from employment due to his service-connected left thigh disability. On remand, the RO should undertake any development necessary to adjudicate a claim for entitlement to a TDIU. The matters are REMANDED for the following action: 1. Provide the Veteran appropriate notice in connection with the claim for a TDIU. The Veteran should be requested to complete and submit an Application for Increased Compensation based on Unemployability (VA Form 21-8940), and the RO should undertake all further appropriate actions for development of the claim. 2. Make arrangements to obtain the Veteran's SSA records, including all disability determinations, application materials, and associated medical records, to the extent available. 3. Obtain and associate with the claims folder any outstanding VA treatment records. 4. Thereafter, upon receipt of all additional records, and any additional notification and/or development deemed warranted, schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and current level of severity of his service-connected myositis ossificans of the left thigh, status post left thigh trauma. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The entire claims file and a copy of this REMAND must be made available to the examiner prior to the examination. The examiner should report all manifestations related to service-connected disabilities. The examiner must note in the examination report that the evidence in the claims file has been reviewed. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. If possible, the appropriate Disability Benefits Questionnaires (DBQs) should be filled out for this purpose. The examiner should provide additional diagnoses or make a change to a diagnosis where medically justified, with an explanation of the justification for any such change. See 38 C.F.R. § 4.13 (reflecting that the aim of the reconciliation of the various diagnoses and etiological theories of record is to identify and maintain, or continue, the diagnosis or etiology upon which service connection for the disability was initially granted). Additionally, the examiner must also specifically state whether the Veteran has any symptoms due solely to any other service-connected or nonservice-connected conditions. Following a review of the entire record, to include the Veteran's lay statements regarding his current symptoms, the examiner should identify and describe in detail all orthopedic and neurological manifestations of the Veteran's service-connected myositis ossificans of the left thigh, status post left thigh trauma, reporting all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner should discuss all findings in terms of the Schedule of Ratings for the Knee and Leg, specifically Diagnostic Codes 5257-5261, to include the new amended rating criteria for Diagnostic Code 5257. The pertinent rating criteria must be provided to the examiner, and the findings reported must be sufficiently complete to allow for a rating under all alternate criteria, including both the new (post-February 2021) and old (pre-February 2021) criteria under DC 5257. In particular, the examiner must: (i) Test and document the range of motion (ROM) for each joint in question in active motion, passive motion, weight-bearing, and non-weight-bearing, on both an initial and after-repetitive-use basis. For each ROM, the examining clinician is asked to explicitly identify the degree in which pain is first evidenced by the Veteran's visible behavior. If unable to conduct the required testing or if the determination is made that the required testing is not necessary in this case, the examiner must provide a thorough explanation. (ii) Attempt to elicit information regarding the severity, frequency, and duration of any reported flare-ups, and the degree of functional loss during any such flare-ups. The examiner should assess such impairment in terms of the degree of additional ROM loss and provide an explanation as to how any such determination was made. If it is not possible to provide a specific ROM measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. (iii) Identify the nature and severity of all current manifestations of the Veteran's service-connected myositis ossificans of the left thigh, status post left thigh trauma. The examiner should describe the extent of any weakened movement, excess fatigability, and incoordination found to be present in terms of the degree of additional ROM loss. Additional limitation following repetitive use over time, if any, must also be noted. (iv) Identify any symptoms and functional impairments due to his service-connected myositis ossificans of the left thigh, status post left thigh trauma, to the extent possible, and discuss the effect of the Veteran's disability on any occupational functioning and activities of daily living. (v) Perform knee joint stability testing. If any instability of the left and/or right knees is identified, the examiner should describe (a) whether the knee instability is mild, moderate, or severe (pre-February 2021 criteria); and (b) whether the Veteran's right leg condition causes persistent instability and whether it represents an unrepaired or failed repair of complete ligament tear; a sprain, incomplete ligament tear, or repaired complete ligament tear; or a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair (post-February 2021 criteria); and (c) whether, as a result of the identified condition(s), the Veteran requires (and/or has been given a prescription by a medical provider for) any assistive devices (e.g., cane(s), crutch(es), walker) or bracing for ambulation. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. All examination findings, along with the complete explanation for all opinions expressed, must be set forth in the examination report. 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 provide a rationale for this conclusion, with specific consideration to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner(s) must include a discussion of any specific facts that cannot be determined and 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). See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). 5. Following completion of the above directive, review the claims file to ensure compliance with this remand. If any examination report does not include adequate responses to the specific opinions requested, it must be returned to the examiner for corrective action. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. McCabe, 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.