Citation Nr: 21074307 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 18-09 948 DATE: December 14, 2021 ORDER A separate 10 percent rating for left knee instability is granted. A separate 10 percent rating for right knee instability is granted. REMANDED A rating in excess of 10 percent for left knee instability is remanded. A rating in excess of 10 percent for right knee instability is remanded. A rating in excess of 10 percent for left knee limitation of motion is remanded. A rating in excess of 10 percent for right knee limitation of motion is remanded. Service connection for intervertebral disk degeneration (IVDS) is remanded. A compensable rating for left knee arthroscopy scars is remanded. A compensable rating for right knee arthroscopy scars is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, the Veteran suffers from at least slight left knee instability. 2. Resolving all doubt in the Veteran's favor, the Veteran suffers from at least slight right knee instability. CONCLUSIONS OF LAW 1. The criteria for a separate rating for left knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.71a DC 5257. 2. The criteria for a separate rating for right knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.71a DC 5257. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from June 1974 to June 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2016 and February 2018 rating decisions from a Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. Bilateral knee instability The Board finds the Veteran is entitled to a separate 10 percent rating for each knee for his bilateral knee instability. The Veteran credibly and competently reported at his October 2021 BVA hearing that he has bilateral knee instability and his knees periodically gives out. Moreover, he reported that he has received extensive medical treatment for his bilateral knee conditions. See BVA hearing transcript (October 2021). The Board acknowledges that on December 2017, a VA examiner found no objective evidence of bilateral knee instability. However, the Board finds the Veteran credibly and competently reported his bilateral knee instability. The Court held in English v. Wilkie, 30 Vet. App. 347 (2018) that Diagnostic Code 5257 does not indicate medical evidence of instability is required and emphasized VA must adequately consider lay evidence of such. Based on the Veteran's competent and credible reports regarding knee instability, the Board finds a rating of 10 percent is warranted. A higher rating in excess of 10 percent for bilateral knee instability is discussed in the remand section of this decision. In light of the forgoing and after resolving all reasonable doubt in the Veteran's favor, a separate service connection rating of at least 10 percent for slight instability in each knee is warranted. In reaching this determination, the Board observes that historically the Veteran right and left knees were rated as 10 percent disabling under Diagnostic Code 5257 and in Murray v. Shinseki, 4 Vet. App. 420 (2011), a veteran who had been in receipt of a 10 percent rating under Diagnostic Code 5257 for more than 20 years when the RO changed the Diagnostic Codes under which the disability was rated to 5260 and 5261 and discontinued the rating under 5257. The Court held that the rating under Diagnostic Code 5257 was protected, and the RO's actions constituted an impermissible reduction in a protected rating. REASON FOR REMAND Bilateral knee instability, limitation of motion and scars, lumbar and TDIU The Veteran seeks an increased rating for his bilateral knee conditions with scars since the conditions have worsened since the last VA examination in December 2017. In support, he reported at his October 2021 BVA hearing that some of his symptoms include pain, giving out and tender scars from surgery. Additionally, he stated that he receives medical care, to include medications and injections, for his bilateral knee conditions at the VA. Indeed, the record shows pain management, to include medication and injections block to treat his knees. See VA medical treatment record (April 2021). When a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. As such, the Veteran must be afforded another VA examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997; see also VAOPGCPREC 11-95 (April 7, 1995). Additionally, the Court of Appeals for Veteran's Claims has held, "the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria." Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). DC 5257 does not contemplate the effects of relief provided by medication. Further, the Veteran reported flareups in his knees, however, the medical evidence in this period does not show relevant information or an opinion regarding the Veteran's flare ups and functional loss. See VA medical examination (December 2017). Thus, the Board finds that a medical opinion is warranted, in compliance with Sharp, to address the current severity of his bilateral knee conditions. The United States Court of Appeals for Veterans Claims (Court) issued the decision in Sharp v. Shulkin, 29 Vet. App. 26 (2017) concerning the adequacy of VA orthopedic examinations. In Sharp, the Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must "elicit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why he could not do so. Therefore, the Board finds that a medical evaluation is necessary to determine the Veteran's current severity and impact of all symptoms, flare-ups, functional impairment and conditions present in his knees, including his scars. As to his lumbar condition, the Veteran reported at his BVA hearing that service connection is warranted for his lumbar condition since it was related to service and his service-connected disabilities. Indeed, his medical record shows a medical diagnosis of IVDS and medical treatment for his back condition. See VA medical examination (August 2016); see also VA medical treatment record (April 2021). The Board acknowledges the September 2016 and October 2016 VA examiner negative nexus opinions. However, the Board finds that the examinations are inadequate since the examiner must provide a complete rationale for the nature, onset and cause of the Veteran's lumbar condition, as well, if his lumbar condition is proximately due, aggravated or caused by his service-connected conditions. Further, the examiner must discuss the credible and competent medical and lay evidence in record. Thus, this issue must be remanded. In addition, the Veteran reported at his October 2021 BVA hearing that his service-connected disabilities affect his employable status and has contributed to his early retirement. See BVA hearing transcript (October 2021). To this date, no VA form 21-8940 has been received. As such, the issue of entitlement to TDIU has been raised. The evidence shows that the Veteran is not working and in light of the decision of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009), this issue must be remanded. Additionally, the Board finds that the Veteran's TDIU claim is inextricably intertwined with the readjudication of the matters on remand. See Harris v. Derwinski, 1 Vet. App. 181 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). As there are no adequate and Sharp-compliant examinations to determine the severity of his bilateral knee conditions, as well, the nature of his lumbar condition, or if it is proximately due or aggravated by his service-connected disabilities, a remand is necessary to have the Veteran examined and for an examiner to review his claims folder and provide opinions necessary to adjudicate this appeal. The matters are REMANDED for the following action: 1. Furnish the Veteran a VA form 21-8940 and request that he complete and submit it. 2. Obtain complete VA and Non-VA treatment records of the Veteran's bilateral knees and back conditions. 3. Notify the Veteran that he may submit additional lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service lumbar condition. Additionally, about the severity of his bilateral knees. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. Schedule a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible). Whether an in-person examination is necessary should be determined by the examiner. The examiner must determine the severity and impact of the Veteran's service-connected bilateral knee conditions with scars. The examiner should provide a full description of his bilateral knee problems, severity and report all signs and symptoms necessary for evaluating the Veteran's disabilities. In doing so, the examiner must specifically acknowledge and discuss the Veteran's medical and competent lay reports. The examiner should identify all knee impairment found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 5. Schedule a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible). The examiner must opine as to whether it is at least as likely as not that the Veteran's lumbar condition is related to or had its onset in service. Additionally, the examiner must opine if his lumbar condition is related to service or proximately due, caused, aggravated or related to his service-connected disabilities. In offering these opinions, the examiner must acknowledge and discuss the Veteran's competent lay statements of his conditions and any lay evidence regarding the onset of his conditions. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Alvarado- 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.