Citation Nr: 21073772 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 20-13 200 DATE: December 10, 2021 THE ISSUES 1. Entitlement to a disability rating higher than 20 percent for left knee degenerative arthritis from February 23, 2018, through October 14, 2018. 2. Entitlement to a separate disability rating for left knee instability from February 23, 2018, through October 14, 2018. 3. Entitlement to a disability rating higher than 30 percent for left total knee replacement from December 1, 2019. 4. Entitlement to a disability rating higher than 20 percent for right knee degenerative arthritis from February 23, 2018, to February 3, 2019. 5. Entitlement to a disability rating higher than 10 percent for right knee instability from February 23, 2018, to February 4, 2019 6. Entitlement to a disability rating higher than 30 percent for right total knee replacement from April 1, 2020. 7. Entitlement to a disability rating higher than 0 percent for a residual scar on the right knee. 8. Entitlement to a total disability rating based on individual unemployability (TDIU). 9. Entitlement to a compensable rating for a left knee scar. REMANDED Entitlement to a disability rating higher than 20 percent for left knee degenerative arthritis from February 23, 2018, through October 14, 2018 is remanded. Entitlement to a separate disability rating for left knee instability from February 23, 2018, through October 14, 2018 is remanded. Entitlement to a disability rating higher than 30 percent for left total knee replacement from December 1, 2019 is remanded. Entitlement to a disability rating higher than 20 percent for right knee degenerative arthritis from February 23, 2018, to February 3, 2019 is remanded. Entitlement to a disability rating higher than 10 percent for right knee instability from February 23, 2018, to February 4, 2019 is remanded. Entitlement to a disability rating higher than 30 percent for right total knee replacement from April 1, 2020. Entitlement to a disability rating higher than 0 percent for a residual scar on the right knee is remanded. Entitlement to a TDIU is remanded. Entitlement to a compensable rating for a left knee scar is remanded. REASONS FOR REMAND The Veteran had active service from March 1966 to November 1969. In February 2018 he submitted a claim for service connection for left and right knee disabilities. In an April 2018 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) granted service connection, effective February 23, 2018, for left knee degenerative arthritis. The RO assigned a 10 percent disability rating. For the Veteran's right knee, the RO granted service connection for degenerative arthritis, rated at 10 percent, for instability, rated at 10 percent, and for a residual scar, rated at 0 percent. The Veteran appealed each of the ratings the RO assigned to the Board of Veterans' Appeals (Board). Later, the Veteran indicated that his appeal of the ratings included an appeal for a TDIU. In October 2018 the Veteran underwent surgical total replacement of his left knee. He sought a temporary total (100 percent) rating and reevaluation of his left knee disability. In a December 2018 rating decision, the RO changed the description of the left knee disability to left total knee arthroplasty. The RO granted a temporary total rating from October 15, 2018, and a 30 percent rating from December 1, 2019. The Veteran continued his appeal. In February 2019 the Veteran underwent surgical total replacement of his right knee. He sought a temporary total rating and reevaluation of his right knee disability. In a November 2019 rating decision, the RO changed the description of the right knee degenerative arthritis to right total knee replacement. For the knee replacement, the RO granted a temporary total rating from February 4, 2019, and a 30 percent rating from April 1, 2020. The RO made the 10 percent rating for right knee instability effective from February 23, 2018, to February 4, 2019. In effect, the RO evaluated the musculoskeletal disability of the right knee before the knee replacement as degenerative arthritis separate ratings for limitation of motion and for instability. After the replacement, the RO rated the right knee musculoskeletal disability as disability residual to replacement, as a single rating. The RO's actions in the November 2019 rating decision, also included continuing the 0 percent rating for a right knee scar. The Veteran continued his appeal. In a March 2021 decision, the Board denied a rating higher than 30 percent for left total knee replacement from December 1, 2019. The Board denied a rating higher than 10 percent for right knee instability from February 23, 2018, to February 4, 2019. The Board granted a 20 percent rating for left knee degenerative arthritis from February 23, 2018, to October 14, 2018. The Board granted a 20 percent rating for right knee degenerative arthritis from February 23, 2018, to February 4, 2019. The Board remanded to the RO, for additional action, a disability rating higher than 30 percent for right total knee replacement from April 1, 2020, a disability rating higher than 0 percent for a residual scar on the right knee, and a TDIU. However, in an August 2021 decision, the Board vacated its earlier March 2021 decision and remanded the matters to provide the Veteran with a Board hearing. The Veteran was afforded such a hearing in front of the undersigned Veterans Law Judge (VLJ) in September 2021. The Board also notes that the AOJ has not issued a statement of the case (SOC) for the claim for a compensable rating for a left knee scar following the Veteran's filing of the June 2018 notice of disagreement. No pertinent development of that issue has followed. Thus, the Board will assume jurisdiction over the Veteran's appeal for entitlement to service connection for a left knee scar for the sole purpose of remanding it for the issuance of a statement of the case. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). 1. Entitlement to a disability rating higher than 20 percent for left knee degenerative arthritis from February 23, 2018, through October 14, 2018 is remanded. 2. Entitlement to a separate disability rating for left knee instability from February 23, 2018, through October 14, 2018 is remanded. 3. Entitlement to a disability rating higher than 30 percent for left total knee replacement from December 1, 2019 is remanded. 4. Entitlement to a disability rating higher than 20 percent for right knee degenerative arthritis from February 23, 2018, to February 3, 2019 is remanded. 5. Entitlement to a disability rating higher than 10 percent for right knee instability from February 23, 2018, to February 4, 2019 is remanded. 6. Entitlement to a disability rating higher than 30 percent for right total knee replacement from percent from April 1, 2020. 7. Entitlement to a disability rating higher than 0 percent for a residual scar on the right knee is remanded. 8. Entitlement to a TDIU is remanded. The Veteran contends that he is entitled to increased ratings for his bilateral knee disabilities, to include a separate disability rating for left knee instability, and that as a result of these service-connected disabilities, he is unable to obtain or maintain gainful employment. At the August 2021 Board hearing, the Veteran argued, through his attorney, that the previous VA examinations were inadequate due to the quality of the examiners. With regards to his knee disabilities, the Veteran complained that his disability level was not accurately reflected in the December 2019 VA examination. With regards to the more recent July 2020 VA contracted examination, the Veteran testified that the entire examination lasted only 10 minutes and that he had communication problems with the examiner. The Veteran's attorney also claimed that the examiner who performed the April 2021 VA examination had not completed the necessary training to conduct such examinations. Records of private medical treatment of the Veteran from as early as 2004 reflect chronic bilateral knee problems. Private orthopedic treatment records from January 2018 reflect pain and osteoarthritis in both of his knees. It was noted that he had a cortisone injection three months earlier, and that presently he used pain medication. He related that his left knee had moderate pain, and that his left knee popped out. In March 2018 the Veteran initiated treatment at a VA clinic. He had a VA orthopedic visit for evaluation of bilateral knee pain. It was noted that he was 72 years old. He indicated that he received Social Security benefits and worked part time for his son's plumbing business. He stated that during service he had a motor vehicle accident (MVA) in 1967 and sustained significant injury of his right knee. He reported that he had surgical patellectomy. He stated that his left leg sustained a deep laceration just below the knee. He related that over time he favored his right knee, causing strain on his left knee. He reported a long history of bilateral knee pain, worsened by activity or prolonged inactivity. He stated that cortisone injections in his knees temporarily reduced pain. The clinician observed that the Veteran had a mildly antalgic gait, with limping on the right. The Veteran's left knee had tenderness to palpation. That knee lacked 5 degrees of full extension. The active range of motion was from 5 degrees to 120 degrees. The left knee had a varus deformity. The left knee was stable to varus and valgus stress testing. Left knee x-rays showed tricompartmental degenerative joint disease, with bone-on-bone contact of the medial compartment and osteophytes on tibial spine and the patella. On VA examination in April 2018, the Veteran reported injury of both knees in an MVA in 1967. He reported having knee surgeries in 1967 and 1968. He stated that presently he had daily bilateral knee pain. He related flare-ups during which he had more severe pain and he could not bear weight. He reported that he occasionally used a cane. He stated that he was a self-employed plumber. He reported that his bilateral knee problems interfered with his work. He explained that he had severe knee pain with crawling, kneeling, or squatting. He related that knee pain made him unable to do many tasks, such as digging holes, entering crawl spaces, or climbing ladders. The examiner reviewed the claims file, including the March 2018 x-rays. The examiner listed a diagnosis of degenerative arthritis in both knees. On examination, the Veteran's left knee was limited to 90 degrees of flexion. The knee had extension to 0 degrees. There was pain with flexion and with weightbearing. After three repetitions of motion the ranges of motion were the same. The knee had 5/5 muscle strength in flexion and extension. The examiner indicated that the knee did not have a history of recurrent subluxation or lateral instability. Testing did not show instability. In May 2018 the Veteran had a VA orthopedic visit for reevaluation of both of his knees. The Veteran reported ongoing and worsening bilateral knee pain, presently worse in the left knee. He indicated that the bilateral knee pain negatively affected his overall quality of like and ability to perform activities of daily living. The clinician reviewed the March 2018 x-rays of both knees. The clinician observed that presently the Veteran had a mildly antalgic gait, with limping on the right. The Veteran's left knee had tenderness to palpation. That knee lacked 5 degrees of full extension. The active range of motion was from 5 degrees to 120 degrees. The left knee had a varus deformity. The left knee was stable to varus and valgus stress testing. In VA treatment visits in May, June, and July 2018, the Veteran indicated that in May 2018 one or both of his knees gave way and he fell. In August 2018 he reported ongoing bilateral knee pain. He had knee braces. A physical therapist recommended continued use of knee braces. The Board observes that the clinician who completed the April 2018 VA examination for the Veteran's knee disabilities stated that pain significantly limits the Veteran's functional ability during a flare up. However, the examiner also stated that it is not feasible to describe these additional limitations due to pain in terms of range of motion loss due to the fact that the Veteran is not present during a flare up. In September 2017, the Court issued Sharp v. Shulkin, 29 Vet. App. 26 (2017). In that decision, the Court held that an examination is inadequate if the examination report contains a conclusory statement that the examiner is not able to estimate the functional loss during a flare-up of symptoms without resorting to speculation because the examination is not being conducted during a flare-up. In Sharp, the Court indicated that an examiner must do all that reasonably should be done to become informed about a case and elicit relevant information as to the Veteran's flare-ups, such as the Veteran's lay statements regarding the frequency, duration, characteristics, severity, or functional loss of a flare-up. The April 2018 examination report does not appear to indicate that the examiner attempted to elicit all relevant information regarding the circumstances of the Veteran's flare-ups. Thus, on remand the Veteran should be afforded retrospective VA opinions for the periods prior to the Veteran's knee replacement surgeries, consistent with the Court decision in Sharp v. Shulkin, 29 Vet. App. 26 (2017). Additionally, the Veteran, during the September 2021 Board hearing, indicated that he experienced bilateral knee instability and suffered falls throughout the period on appeal as a result of instability in each knee. While the Veteran in in receipt of a separate disability rating for instability of the right knee for the period prior to that knee replacement, he is not in receipt of a separate disability rating based on instability for the left knee prior to that knee being replaced. On remand, the examiner should also address the Veteran's testimony in the September 2021 Board hearing, specifically the Veteran's complaints of instability bilaterally and describe any instability as slight, moderate, or severe. Finally, the Veteran contended in the September 2021 Board hearing that his bilateral knee scaring was more severe than reflected in the examinations. The issue of an increased disability rating for a left knee scar will be addressed below. Turning to the period after the Veteran's knee replacements, the Board notes the criteria for knee replacement under Diagnostic Code 5055 have changed during the period covered by this appeal. To wit, the criteria for knee replacement under Diagnostic Code 5055 have changed, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5055). 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. Therefore, VA must consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that are more favorable to the Veteran will be applied. Prior to the regulatory change, Diagnostic Code 5055, which governs knee replacement (prosthesis), provides that for one year following implantation of the prosthesis, the knee joint warrants an evaluation of 100 percent. Thereafter, where there are chronic residuals consisting of severe painful motion or weakness in the affected extremity, a 60 percent rating is warranted. Where there are intermediate degrees of residual weakness, pain or limitation of motion, the disability is rated by analogy to diagnostic codes 5256, 5261 or 5262. The minimum rating is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5055. 38 C.F.R. § 4.71a, Diagnostic Code 5055. As of February 7, 2021, under the amended criteria, Diagnostic Code 5055 notes that it addresses knee resurfacing or replacement (prosthesis) and that for four months following implantation of prosthesis or resurfacing, a 100 percent rating is assigned. A 30 percent rating is assigned for a minimum evaluation for total replacement only. A Note provides that at the conclusion of the 100 percent evaluation period, evaluate resurfacing under Diagnostic Codes 5256 through 5262; there is no minimum evaluation for resurfacing. Under the criteria in effect prior to February 7, 2021, under Diagnostic Code 5262, pertaining to impairment of the tibia and fibula, a 10 percent disability rating is assigned for malunion with slight knee or ankle disability, and a 20 percent disability rating is warranted for malunion with moderate knee or ankle disability. A 40 percent disability rating is appropriate where there is nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Under the revised criteria, Diagnostic Code 5262 now provides a 30 percent evaluation for shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities; a 20 percent rating is warranted for shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity, a 10 percent rating is warranted for shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities; and a noncompensable rating is warranted for shin splints that have treatment less than 12 consecutive months, one or both lower extremities. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, the amendments did not change the criteria under Diagnostic Codes 5256, 5258, 5259, 5260, or 5261. Under 38 C.F.R. § 4.71a, Diagnostic Code 5260, if flexion of the knee is limited to 45 degrees a 10 percent rating is in order. If flexion of the knee is limited to 30 degrees a 20 percent rating is in order. If flexion of the knee is limited to 15 degrees a 30 percent rating is in order. Under 38 C.F.R. § 4.71a, Diagnostic Code 5261, if extension of the knee is limited to 10 degrees a 10 percent rating is in order. If extension of the knee is limited to 15 degrees a 20 percent rating is in order. If extension of the knee is limited to 20 degrees a 30 percent rating is in order. Finally, upon remand, the Veteran should be afforded a new VA examination, conducted by a competent medical professional, to be evaluated under the old and new regulations, as detailed above. The Board notes that the issues of increased rating for a right knee scar and a TDIU claims are a part of his bilateral knee increased disability rating claims. Therefore, as they are inextricably intertwined, his increased rating for a right knee scar and TDIU claims are also remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 9. Entitlement to a compensable rating for a left knee scar is remanded. The record raises an issue under Manlincon v. West, 12 Vet. App. 238 (1999), and the Board accepts limited jurisdiction over this issue for the sole purpose of remanding it to the AOJ to resolve the Manlincon issue. As noted above, the AOJ denied the Veteran's claim for service connection for a left knee scar in a April 2018 rating decision. The Veteran filed a timely notice of disagreement in June 2018 to initiate an appeal of that claim. The AOJ acknowledged its receipt of the NOD that same month. However, the Veteran has not been provided an SOC. The AOJ must issue an SOC and provide the Veteran with instructions on perfecting his appeal of this claim to the Board, if he so chooses. See 38 C.F.R. §§ 19.26, 19.29; Manlincon, 12 Vet. App. at 240-41. The matters are REMANDED for the following action: 1. Furnish the Veteran with a statement of the case regarding the claim of entitlement to an increased disability rating for a left knee scar. Provide the Veteran with written instruction on perfecting his appeal to the Board. 2. Schedule the Veteran for a VA examination with an orthopedic physician to determine the current nature and severity of his service-connected bilateral knee disabilities, to include any scaring. All required tests should be performed. The electronic claims file should be accessible to the examiner in connection with the examination. The examiner must consider all signs and symptoms necessary for evaluating the disability under the rating criteria as indicated by the relevant Disability Benefits Questionnaire (DBQ). An explanation for all opinions expressed must be provided. The examiner must include a current curriculum vitae (CV) or résumé with her or his report. The examiner should evaluate the disabilities under the previous and revised criteria for Diagnostic Code 5055. See 38 C.F.R. § 4.71a were amended effective February 7, 2021. Additionally, the examiner is asked to provide an addendum opinion for the periods prior to the Veteran's knee replacements. Prior to the Veteran's knee replacements, the examiner should determine whether the Veteran experienced flare-ups and to the extent possible estimate any additional functional loss caused by the Veteran's flare-ups. In addition, if possible, elicit from the Veteran all signs and symptoms of the bilateral knee disability prior to the Veteran's knee replacements. In so doing, obtain information from the Veteran (and the treatment records) as to the frequency, duration, characteristics, severity, or functional loss with any repetitive use or during any flare-ups. 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 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). The examiner is reminded that the absence of a current flare during the examination in an inadequate explanation for being unable to providing a specific measurement. The examiner is asked to consider the VA examinations and private treatment records prior to the Veteran's knee replacements. Additionally, for the periods prior to the Veteran's knee replacement, the examiner must explain whether there was any instability present in either knee. In doing this, the examiner must address the Veteran's complaints of falling due to bilateral knee instability prior to his knee replacements. See September 2021 Board hearing. An explanation for all opinions expressed must be provided. 3. After the above development, and any additionally indicated development, has been completed, review the claims, including the inextricably intertwined issue of TDIU. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Geary, 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.