Citation Nr: 21069259 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 18-46 530 DATE: November 18, 2021 REMANDED Entitlement to an evaluation in excess of 10 percent disabling for service-connected right knee limitation of motion with degenerative joint disease is remanded. Entitlement to an evaluation in excess of 10 percent disabling for service-connected right knee instability (previously evaluated as status-post (s/p) removal of right medial meniscus, s/p reconstruction of the anterior cruciate ligament) is remanded. Entitlement to an earlier effective date for the grant of service connection for right knee limitation of motion with degenerative joint disease is remanded. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active-duty service with the Air Force from September 1976 to September 1980. In an October 2018 substantive appeal, the Veteran requested a video conference hearing. In February 2021, Counsel appeared on behalf of the Veteran at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. As a preliminary matter, the Board observes that Counsel, appearing on behalf of the Veteran, indicated that the Veteran was happy with the issues from the September 2018 Statement of the Case except for the issue of entitlement to an increased evaluation for instability of the right knee. Specifically, it was noted that the main argument of the higher rating of stability is based on the denial for a higher evaluation of 20 percent for impairment of the knee and that the Veteran was satisfied with the issues related to Diagnostic Codes 5258 and 5261. However, while the Board has considered this statement, the Board does not find that it satisfies the criteria laid out in Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018) for an oral withdrawal of the remaining issues. The Veteran was not present during the hearing to indicate that he was withdrawing the issues on his own volition or that he fully understood the repercussions of this action, and, the Veteran's representative never specifically requested to "withdraw" the issues, instead noting that the Veteran was satisfied. As such, the Board will proceed to adjudicate all issues on appeal until a formal withdrawal is associated with the record. Regrettably, as to all the issues on appeal, the Board finds that a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2020). REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 10 percent disabling for service-connected right knee instability (previously evaluated as status-post (s/p) removal of right medial meniscus, s/p reconstruction of the anterior cruciate ligament) is remanded. The Veteran contends that his service-connected right knee instability, previously evaluated as s/p removal of right medial meniscus, s/p reconstruction of the anterior cruciate ligament, warrants a higher evaluation of 20 percent disabling. Review of the record indicates that the Veteran was initially granted service connection for a right knee sprain pursuant to a September 1986 rating decision. An evaluation of 10 percent disabling was assigned effective April 11, 1986. This date corresponds with the filing of an initial claim for service connection. Pursuant to a September 2018 rating decision, a separate evaluation of 10 percent disabling was assigned for s/p removal of right medical meniscus, s/p reconstruction of the anterior cruciate ligament, effective November 29, 2017. In his notice of disagreement, the Veteran asserted that the current severity of his right knee with instability has been described as moderate dating back to September 1986. That date corresponds with the RO decision which granted service connection for a right knee sprain. Review of the record indicates that the Veteran's right knee condition has been evaluated on multiple occasions. In November 1988, the VA examiner documented a current diagnosis of internal derangement of the right knee, with torn meniscus, moderate anterolateral rotary instability of right knee. The condition was deemed symptomatic. X-ray films revealed slight narrowing in the medial joint line with a small osteophyte of the interior portion of the medial femoral condyle. A subsequent VA opinion dated November 2015, noted complaints of right knee pain, aching, instability, locking, and giving out. Joint stability testing revealed moderate lateral instability. In an orthopedic progress note, also dated November 2015, right knee pain with instability was documented. A prior history of surgical intervention included multiple meniscal repairs, and an anterior cruciate ligament (ACL) reconstruction. During a February 2021 Board hearing, the Veteran's counsel appeared on his behalf. Therein, counsel reported authorization to speak on his behalf. Reportedly, the Veteran was satisfied with the assigned evaluations for his right knee condition, with exception to the evaluation for instability. According to the Veteran, his right knee pain with instability has been consistently described as moderate throughout the appeal period. Reportedly, his symptoms have persisted for more than 30 years. On review of the record, the Board finds that a remand is required to consider the Veteran's complaints of worsening symptoms, to include a lengthy history of moderate instability. Conversely, the Board recognizes that the Veteran has not been assigned an evaluation of 20 percent disabling for instability of the right knee. Thus, his assertion entitlement to an earlier effective date for the stated rating is premature. In this case, the record shows that the Veteran was last afforded a VA examination in November 2015. The Board recognizes that the Veteran is generally competent to report on his current symptoms and their worsening. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Where there is evidence that the condition has worsened since the last examination, a veteran is entitled to a new VA examination. See 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); Snuffer v. Gober, 10 Vet. App. 400, 402-03 (1997). 2. Entitlement to an evaluation in excess of 10 percent disabling for service-connected right knee limitation of motion with degenerative joint disease is remanded. The Veteran contends that that he is entitled to an increased evaluation for his service-connected right knee limitation of motion with degenerative joint disease. The Board incorporates by reference, the analysis, findings and conclusions noted above to this claim as well. 3. Entitlement to an earlier effective date for the grant of service connection for right knee limitation of motion with degenerative joint disease is remanded. The Veteran contends that he is entitled to an earlier effective date for the grant of service connection for right knee limitation of motion with degenerative joint disease. The Board finds that the claim for an earlier effective date is inextricably intertwined with the increased rating claims noted above and therefore, current adjudication is deferred as premature. Accordingly, this matter is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected right knee limitation of motion with instability. The entire claims file and a copy of this remand should be made available to the examiner for review, and such review should be noted in the examination report. All necessary tests and studies should be conducted. The examiner must also discuss the functional effects of the Veteran's service-connected right knee limitation of motion with instability, and any related residual conditions. As a part of the examination and/or opinion, the examiner must consider all medical evidence to include the Veteran's lay statements. The examiner's attention is specifically called to the Veteran's reports of right knee limitation of motion with instability dating back to the initial grant of service connection in September 1986. Any opinion offered must be accompanied by a complete rationale, to include consideration of all medical evidence and lay statements. If any requested opinion cannot be offered without resorting to speculation, the examiner should indicate such in the examination report and explain why a non-speculative opinion cannot be offered. The examiner should also identify what, if any, additional information or evidence would allow for a more definitive opinion. 2. Thereafter, re-adjudicate the Appellant's claims, to include the inextricably intertwined claim. If any benefit sought remains denied, provide the Veteran with a supplemental statement of the case and an adequate opportunity to respond before returning the matter to the Board for further adjudication, if otherwise in order. 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 all claims remanded by the Board or by the United States Court of Appeals for Veterans Claims to be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Whitaker, 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.