Citation Nr: 21074526 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 15-15 824 DATE: December 15, 2021 REMANDED The issue of entitlement to an evaluation in excess of 10 percent disabling for the period prior to January 19, 2016, not including the period of 100 percent, in excess of 30 percent disabling for the period beginning March 1, 2017, and prior to January 28, 2019, and in excess of 60 percent disabling for the period thereafter, for service-connected total arthroplasty, left knee, previously coded under DC 5257 and 5260-5010, associated degenerative arthritis associated with total arthroplasty, right knee, previously coded under DC 5260 and 5257, is remanded. The issue of entitlement to an initial evaluation in excess of 10 percent disabling for the period prior to October 1, 2014, in excess of 20 percent disabling for the period beginning October 1, 2014, and prior to January 19, 2016, and a compensable rating for the period thereafter, for service-connected left knee subluxation, is remanded. The issue of entitlement to an evaluation in excess of 10 percent disabling for the period prior to January 15, 2015, in excess of 30 percent disabling for the period beginning March 1, 2016, and prior to December 22, 2020, and in excess of 60 percent disabling for the period thereafter, for service-connected total arthroplasty, right knee, previously coded under DC 5260 and 5257, associated with degenerative arthritis, right knee, and patellofemoral syndrome, is remanded. The issue of entitlement to an initial evaluation in excess of 20 percent disabling, for the period prior to January 15, 2015, and a compensable rating for the period thereafter, for service-connected right knee meniscal tear, postoperative with instability, is remanded. The issue of entitlement to an initial compensable evaluation for the period prior to December 22, 2020, and in excess of 10 percent disabling for the period thereafter, for service-connected bilateral knee arthroplasty scars associated with total arthroplasty, right knee, previously coded under 5260 and 5257, is remanded. The issue of entitlement to an additional period of convalescence beyond November 1, 2010, for arthroscopic surgery performed on left knee on September 16, 2010, is remanded. The issue of entitlement to an initial compensable evaluation service-connected scar, left knee (underlying soft tissue damage) associated with total arthroplasty, left knee, previously coded under DC 5257 and 5260-5010, associated degenerative arthritis, is remanded. The issue of entitlement to an initial compensable evaluation for service-connected scar, right knee (underlying soft tissue damage) associated with total arthroplasty, right knee, previously coded under DC 5260 and 5257, is remanded. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1978 to March 1979. In August 2018, the Veteran testified under oath before the undersigned Veterans Law Judge at a Travel Board. A transcript of the hearing is of record. In April 2021, the Board remanded the appeal for additional development. For the reasons outlined below, the Board finds that remand is again needed. 1. Entitlement to an evaluation in excess of 10 percent disabling for the period prior to January 19, 2016, not including the period of 100 percent, in excess of 30 percent disabling for the period beginning March 1, 2017, and prior to January 28, 2019, and in excess of 60 percent disabling for the period thereafter, for service-connected total arthroplasty, left knee, previously coded under DC 5257 and 5260-5010, associated degenerative arthritis associated with total arthroplasty, right knee, previously coded under DC 5260 and 5257. 2. Entitlement to an initial evaluation in excess of 10 percent disabling for the period prior to October 1, 2014, in excess of 20 percent disabling for the period beginning October 1, 2014, and prior to January 19, 2016, and a compensable rating for the period thereafter, for service-connected left knee subluxation. 3. Entitlement to an evaluation in excess of 10 percent disabling for the period prior to January 15, 2015, in excess of 30 percent disabling for the period beginning March 1, 2016, and prior to December 22, 2020, and in excess of 60 percent disabling for the period thereafter, for service-connected total arthroplasty, right knee, previously coded under DC 5260 and 5257, associated with degenerative arthritis, right knee, and patellofemoral syndrome. 4. Entitlement to an initial evaluation in excess of 20 percent disabling, for the period prior to January 15, 2015, and a compensable rating for the period thereafter, for service-connected right knee meniscal tear, postoperative with instability. 5. Entitlement to an initial compensable evaluation for the period prior to December 22, 2020, and in excess of 10 percent disabling for the period thereafter, for service-connected bilateral knee arthroplasty scars associated with total arthroplasty, right knee, previously coded under 5260 and 5257. 6. Entitlement to an additional period of convalescence beyond November 1, 2010, for arthroscopic surgery performed on left knee on September 16, 2010. 7. Entitlement to an initial compensable evaluation service-connected scar, left knee (underlying soft tissue damage) associated with total arthroplasty, left knee, previously coded under DC 5257 and 5260-5010, associated degenerative arthritis. 8. Entitlement to an initial compensable evaluation for service-connected scar, right knee (underlying soft tissue damage) associated with total arthroplasty, right knee, previously coded under DC 5260 and 5257. 9. Entitlement to a TDIU. The Board finds that additional development is needed prior to final adjudication of the issues on appeal. In the April 2021 remand, the Board specifically directed that for the new VA examination "all ranges and planes of motion where pain is noted, the exact point at which pain starts must be clearly noted." (Emphasis in the original). The Veteran was reexamined in June 2021. The initial range of motion (ROM) measurements for the right knee, on both active and passive ROM, indicate pain on flexion and extension. In the left knee, pain is indicated on extension in active ROM, and in both flexion and extension on passive ROM. However, the examination report does not indicate, in terms of degrees of ROM, where this pain begins. Accordingly, a new VA examination is needed. See Correia v. McDonald, 28 Vet. App. 158 (2016); and Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board acknowledges the following DBQ instruction in the initial active ROM testing: "If any limitation of motion is specifically attributable to pain, weakness, fatigability, incoordination, or other; please note the degree(s) in which limitation of motion is specifically attributable to the factors identified and describe." However, in the space provided following the instruction, the examiner does not identify any of these specific factors, in particular, the impact of the noted pain in flexion and extension. Accordingly, it remains unclear to the Board, if the initial active ROM measurements reflect the point at which pain occurs as requested in the April 2021 remand. Accordingly, a new examination is needed. In addition, the Board acknowledges the September 2021 VA addendum opinion, which notes "pain with passive ROM at 20 degrees on the right and 30 degrees on the left with weight bearing." However, it is unclear to the Board to which ROM this refers. For example, in the June 2021 VA examination report, pain was reported on the right knee in both flexion and extension passive ROM. In addition, it is unclear to the Board whether the "30 degrees on the left" refers to passive ROM or solely with weight-bearing. The addendum opinion also provides ROM measurements for nonweight-bearing, but it is unclear to the Board if they apply to both knees. Further, in the April 2021 remand, the Board noted that at the August 2018 travel Board hearing, the Veteran indicated the use of "two bilateral braces." The Veteran also mentioned using a scooter at one point. However, the December 2020 VA examination report only indicated the constant use of a cane. The Board had asked that this be clarified upon remand. The Board acknowledges that the June 2021 VA examination report also indicates constant use of a cane(s), but does not see that it addresses the braces or scooter. A July 2021 VA opinion addresses the issue, but it states that "there was no VA examination dated Dec 20, 2020, he had a psych visit but no knee DBQ found on file . . ." However, this opinion is inadequate as there is a VA examination report from December 2020, albeit from December 22, 2020. The Board again asks that the clarification outlined in the April 2021 remand be addressed. Finally, the issues regarding the scars, as well as the TDIU, are inextricably intertwined with the other issues on appeal. Accordingly, remand is appropriate for these issues. The matters are REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the issues on appeal. All efforts should be documented in the claim file. If any records could not be obtained, this should be noted in the claim file. 2. Upon completion of the above, schedule the Veteran for a VA examination to evaluate the current level of severity of his knee disabilities. The claim folder and all pertinent treatment records should be made available to the examiner for review, and review of such records should be noted in any subsequent report. 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 is asked specifically to provide range of motion (ROM) testing for both knees for active motion, passive motion, weight-bearing, and nonweight-bearing. Full ROM testing also must be conducted on the opposite joint unless the opposite joint is damaged, which includes any disorder that would make the joint in question abnormal. If the opposite joint is determined to be damaged, and no ROM testing is conducted, this must be explained in the report. In addition, for both knees the examiner must discuss pain for ROM movements on active, passive, and repetitive use testing. The examiner is asked to address the following questions: (a) Are any ROM movements painful on active, passive, and repetitive use testing? If yes, identify whether active, passive, and repetitive use. (b) If yes (there are painful movements), does the pain contribute to functional loss or additional limitation of ROM? Please further describe the functional loss or additional limitation of ROM. (c) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. In addition, for both knees the examiner must discuss pain when used in weight-bearing or in nonweight-bearing. The examiner is asked to address the following questions: (a) Is there pain when the joint is used in weight-bearing or nonweight-bearing? If yes, identify whether weight-bearing or nonweight-bearing. (b) If yes (there is pain when used in weight-bearing or nonweight-bearing), does the pain contribute to functional loss or additional limitation of ROM? Please further describe these limitations. (c) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. For all ranges and planes of motion where pain is noted, the exact point at which pain starts must be clearly noted. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups, as expressed in range of motion. To the extent possible, the examiner should identify any symptoms and functional impairments due to the knee disabilities and discuss the effect of the Veteran's knee disabilities on any occupational functioning and activities of daily living. The examiner should state whether or not there is any neurologic disability, to include of the lower extremities, that is the result of the knee disabilities. The Board asks that the VA examiner address the following: (a) At the August 2018 travel board hearing, the Veteran indicated the use of "two bilateral braces." The Veteran also mentioned using a scooter at one point. However, the December 2020 and June 2021 VA examination reports only indicate the constant use of a cane(s). The Board asks that this be clarified upon remand. (b) The September 2021 VA addendum opinion notes "pain with passive ROM at 20 degrees on the right and 30 degrees on the left with weight bearing." However, it is unclear to the Board to which ROM this refers. For example, in the June 2021 VA examination report, pain was reported on the right knee in both flexion and extension passive ROM. In addition, it is unclear to the Board whether the "30 degrees on the left" refers to passive ROM or solely with weight-bearing. The addendum opinion also provides ROM measurements for nonweight-bearing, but it is unclear to the Board if they apply to both knees. Clarification should be provided for the above upon remand, if possible. Finally, the examiner should address the impact of the Veteran's knee disabilities on his employability. 3. If upon completion of the above action the issues are denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Foster, 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.