Citation Nr: 21069604 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 17-66 676 DATE: November 19, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for left knee anterior cruciate ligament tear and osteoarthritis with limited flexion prior to June 7, 2016; a rating in excess of 20 percent from June 7, 2016 to November 23, 2017; and a rating in excess of 10 percent since November 24, 2017, is remanded. Entitlement to an initial rating in excess of 20 percent for left knee anterior cruciate ligament tear and osteoarthritis with instability prior to June 7, 2016, and a compensable rating since 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 United States Air Force from April 1981 to April 1987; and Army National Guard from July 2000 to March 2001, from December 2003 to October 2005, and from November 2005 to December 2007. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a timely substantive appeal and requested a Board hearing. The Board notes that the appeal included a claim for service connection for posttraumatic stress disorder (PTSD). In a June 2020 rating decision, the RO granted service connection for unspecified anxiety disorder claimed as PTSD, and assigned a 30 percent disability rating, which is considered a full grant of benefits sought and no longer before the Board. The Veteran testified at a November 2021 videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has not yet been associated with the file. The Board notes this is of no prejudice to the Veteran as the Board is remanding the appeal for further development, and a copy of the hearing transcript will be associated with the claims file in the ordinary course of business. Under Rice v. Shinseki, the Board has jurisdiction over a TDIU claim as part and parcel of the Veteran's increased rating claim if raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, is part of a claim for increased compensation). This issue has been separately characterized in the issues above in accordance with that decision. While the Board regrets the delay, a remand is needed for additional development. This is necessary to ensure that the Veteran is afforded every possible consideration and that there is a complete record upon which to decide his appeal. 1. Left knee anterior cruciate ligament tear and osteoarthritis with limited flexion. 2. Left knee anterior cruciate ligament tear and osteoarthritis with instability. During the November 2021 hearing, the Veteran testified that he currently receives treatment for his service-connected left knee disabilities from VA providers at the Portland/Vancouver facility. The Board additionally notes that the most recent VA treatment records are dated in June 2020. Therefore, a remand is therefore warranted to obtain any relevant, outstanding VA medical treatment records. Additionally, the Veteran testified that his knee conditions have worsened, and knee replacement has been recommended. Further, the Veteran reported that he falls periodically due to his knee giving out, and that he struggles to put on shoes and socks. The Board notes that the most recent VA examination is from November 2017. Therefore, a new examination is necessary in order to assess the current nature and severity of the Veteran's left knee disabilities. The Board also finds a remand is necessary in light of the new regulations for the evaluation of musculoskeletal disabilities effective February 7, 2021. See 85 Fed. Reg. 76, 453-76, 469 (November 30, 2020). Notably, the new regulations represent significant changes to 38 C.F.R. § 4.71a, Diagnostic Code 5257, other impairment of the knee, which addresses recurrent subluxation and instability. This is relevant because the Veteran reported subjective knee instability during the November 2021 hearing. Because the amendments have a specified effective date without provision for retroactive application, they may not be applied before the effective date. As of that effective date, the Board must apply whichever version of the rating criteria is more favorable to the Veteran. 38 U.S.C. § 5110 (g); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Therefore, the Veteran should be afforded a new VA examination that addresses these new criteria. 3. Entitlement to TDIU. During the Board hearing, the Veteran testified that his left knee disabilities have cost him his position, which he held for over 18 years at Home Depot. He was unable to receive an accomodation and was placed in a different department. He reported that his left knee disabilities have caused him loss of income over the past four years. He stated that he currently works delivery for Dominos, but still has issues. The Board finds that a TDIU claim has been reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (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). As the issue of a TDIU is intertwined with the remanded increased rating claims, it is remanded pending the development requested below. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). On remand, the Veteran should be sent notice informing him how to substantiate a claim for TDIU, and he should be asked to complete a VA Form 21-8940, which is designed to elicit information including dates of employment, type of work, reason for leaving employment, education and training, and the disabilities the Veteran believes prevent his employment. The matters are REMANDED for the following action: 1. Obtain any relevant, outstanding VA treatment records, particularly those dated from June 2020 to the present, and associate them with the claims file. If no such records exist, the claims file should be annotated to reflect as such, and the Veteran notified. 2. After the above development has been completed to the extent possible, schedule the Veteran for an examination to determine the current severity of his service-connected left knee disabilities. The claims file, to include a copy of this Remand, must be made available to and reviewed by the examiner. The examiner should note such review was conducted. The examiner should provide a full description of the Veteran's left knee disabilities and report all signs and symptoms necessary for evaluating these disabilities under the rating criteria in effect prior to February 7, 2021, and under the rating criteria in effect thereafter, to include the severity of any instability. Range of motion measurements should be included for active and passive motion in both weight-bearing and non-weight-bearing circumstances. If pain is noted, the point in the range of motion at which pain starts should be clearly noted. If for any reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, or is not medically appropriate, in this case, he or she should clearly explain why that is so. The examiner should also express an opinion as to whether pain, weakness, fatigability, or incoordination cause additional functional impairment on repeated use over time or during flare-ups. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale based on the fact that the Veteran is not having a flare-up at the time of the examination will not be deemed adequate. Clearly identify any and all assistive devices used by the Veteran throughout the appeal, and ascertain from the Veteran whether any such devices were prescribed by a treating clinician. Clearly elicit from the Veteran the extent of his reported knee instability and/or recurrent subluxation and the functional impairment associated with said instability and/or recurrent subluxation. Comment upon whether the Veteran has suffered from the below, or symptomatology/disability equivalent to the below: Recurrent subluxation or instability: (*) Unrepaired or failed repair of complete ligament tear causing persistent instability. (*) Sprain, incomplete ligament tear or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation. (*) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. (*) Sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. Patellar instability: (*) 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. (*) 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 diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. Note: For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note: A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). (Continued on the next page) 3. Provide the Veteran with a VA Form 21-8940 with instructions that it should be completed in order to assist with the adjudication of the TDIU claim. When the completed VA Form 21-8940 has been submitted by the Veteran, or after a reasonable time has been provided for him to complete and return the form, and after conducting any additional development that may be warranted as determined by the RO, adjudicate the issue of entitlement to a TDIU. A. J. Spector Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Camille NeSmith, Associate 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.