Citation Nr: 21068982 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 12-31 260 DATE: November 17, 2021 REMANDED The issue of an initial rating higher than 10 percent for chronic infra-patellar tendonitis; mild degenerative joint disease of the left knee with limited motion (left knee disability) is remanded. The issue of an initial rating higher than 10 percent for a left knee disability with instability is remanded. The issue of a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1976 to February 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2016 and June 2018, the Board remanded the appeal for additional development. 1. The issue of an initial rating higher than 10 percent for a left knee disability is remanded. 2. The issue of an initial rating higher than 10 percent for a left knee disability with instability is remanded. In June 2018, the Board remanded the appeal to schedule the Veteran for a VA examination to determine the current severity of his left knee disability, to include compliance with Sharp v. Shulkin, 29 Vet. App. 26 (2017), as a December 2016 VA examiner did not offer an opinion motion loss in terms of degrees during periods of flareups. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities, including the rating criteria for knee instability, were amended effective February 7, 2021. The Veteran is currently in receipt of a 10 percent rating for left knee instability under DC 5257. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Pursuant to the June 2018 Board remand, in April 2021, the Veteran was afforded a VA knee examination. The VA examiner provided inconsistent responses as to the Veteran's left knee instability. For example, the examiner indicated that the Veteran had recurrent subluxation or persistent instability and that he required a prescription for a cane for ambulation. Thereafter, the examiner indicated that there was no recurrent patellar instability. Importantly, the April 2021 VA examination report does not contain joint stability testing results. Crucially, as of February 7, 2021, under the amended criteria, a 20 percent rating is also warranted for patellar instability if there is a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. A maximum 30 percent rating is also warranted for patellar instability if there is a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Id. As such, the Board is unable to determine whether the pre-amended DC 5257 or the amended criteria for knee instability would provide higher ratings for the Veteran's instability of the left knee based on the evidence of record, as the April 2021 VA examination contained deficiencies. Therefore, a remand is necessary to schedule the Veteran for a VA examination to determine the current severity of left knee disability. 3. The issue of a TDIU is remanded. The issue of a TDIU is inextricably intertwined with the initial ratings claims for the left knee disabilities that are remanded herein; therefore, the issue of a TDIU must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The Board notes that the Veteran has not responded to VA's prior requests that he submit a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. The Veteran is once again encouraged to submit the requested VA Form 21-8940. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Request the Veteran submit a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 3. Schedule the Veteran for a VA examination to determine the current severity of his service-connected left knee disabilities. All necessary tests should be conducted. The claims file must be sent to the examiner for review. The examiner should examine the Veteran and provide findings in accordance with the currently applicable disability benefits questionnaire, including the new rating criteria relevant to lateral and patellar instability, and provide joint stability testing. All opinions must be supported by a detailed rationale. 2. After the above development has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of a TDIU. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Castillo, 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.