Citation Nr: 21074698 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 19-30 653 DATE: December 16, 2021 REMANDED Entitlement to a disability rating in excess of 20 percent for residuals, ligament sprain, right knee is remanded. Entitlement to a disability rating in excess of 20 percent for postoperative right medial meniscectomy associated with residuals, ligament sprain, right knee is remanded. Entitlement to a compensable disability rating for residual scar, status post right medial meniscectomy associated with residuals, ligament sprain, right knee is remanded. Entitlement to total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to special monthly compensation (SMC) based on aid and attendance or housebound status for the period prior to February 28, 2019 is remanded. REASONS FOR REMAND The Veteran had active military service from October 1962 to June 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July and August 2018 rating decisions of a VA Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a January 2021 hearing before the Board of Veterans' Appeals (Board). The Veteran's claim for SMC was originally denied in an August 2018 rating decision. In February 2019, the Veteran filed a NOD with the August 2018 rating decision and subsequently appealed the decision to the Board. Later in February 2019, he filed a new claim for SMC. In a May 2019 rating decision, the RO granted the Veteran's claim for SMC based on the need for aid and attendance, effective February 28, 2019, the date his claim was received. Accordingly, the claim has been recharacterized as a claim for SMC for the period prior to February 28, 2019. 1. and 2. Entitlement to a disability rating in excess of 20 percent for residuals, ligament sprain, right knee and entitlement to a disability rating in excess of 20 percent for postoperative right medial meniscectomy associated with residuals, ligament sprain, right knee are remanded. The Veteran asserts that his right knee disabilities are more severe than is reflected by his evaluations. The Veteran was last afforded a VA examination for his knee conditions in March 2018. During the examination, the Veteran reported regular use of a brace and cane to assist with locomotion. The examiner also found evidence of instability in the Veteran's right knee. During the Veteran's January 2021 Board hearing, the Veteran testified that he made constant use of a cane and medical bandages and also used an electric wheelchair or walker to assist with locomotion. The Board finds that there is evidence that the Veteran's knee disabilities have increased in severity since his last VA examination. Additionally, the Board observes that the rating criteria pertinent to the evaluation of any knee instability has 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 38C.F.R. §4.71a, Diagnostic Code (DC) 5257). Accordingly, the Board finds that these claims must be remanded so that the Veteran can be afforded a new VA examination to assess the current severity of his right knee conditions. 3. Entitlement to a compensable disability rating for residual scar, status post right medial meniscectomy associated with residuals, ligament sprain, right knee is remanded. The Veteran asserts that his right knee scar is more severe than is reflected by his current noncompensable evaluation. The Veteran was last afforded a VA examination for his scar disability in March 2018. During the examination, the examiner noted that he had no service-connected scars that were painful or unstable. In a February 2019 Notice of Disagreement (NOD) statement, the Veteran asserted that his service-connected scars were painful. The Board finds that there is evidence that the Veteran's scar disability has increased in severity since his last VA examination. Accordingly, the Board finds that this claim must be remanded so that the Veteran can be afforded a new VA examination to assess the current severity of his right knee scar disability. 4. Entitlement to TDIU is remanded. The Veteran asserts that he is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. In this case, the Veteran does not presently meet the 38 C.F.R. § 4.16(a) criteria for schedular consideration for TDIU. See May 2019 codesheet. During the March 2018 VA examination for knee conditions, the VA examiner indicated that the Veteran was unable to perform even sedentary work. The Board may not grant an extraschedular TDIU under 38 C.F.R. § 4.16(b) in the first instance. Therefore, this claim is remanded for referral to the Director of the Compensation Service for extraschedular consideration. Additionally, the Board finds this issue inextricably intertwined with the other issues being remanded in this decision. 5. Entitlement to SMC based on aid and attendance or housebound status for the period prior to February 28, 2019 is remanded. The Veteran asserts that he is entitled to SMC for the period prior to February 28, 2019. The Board finds that the development and adjudication of the other issues on appeal being remanded have the potential to affect the outcome of the claim for SMC. Accordingly, this issue is inextricably intertwined with the other issues on appeal. Since the issue of entitlement to SMC is inextricably intertwined with the remanded issues, the Board finds that it must also be remanded. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate clinician to determine the current severity of his service-connected right knee disabilities, as well as any instability and arthritis. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the applicable rating criteria. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of any additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement 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). Additionally, the examiner should indicate whether the Veteran uses any devices to assist with locomotion, how frequently any devices are used, and whether he has a prescription for any devices he uses. The RO should review the VA examiner's opinion and ensure it includes an adequate rationale for the assessment of any instability under the rating criteria in effect prior to February 7, 2021 as well as the revised rating criteria effective February 7, 2021, with citation to supporting evidence in the record including all lay statements about the instability. The RO should ensure that the examiner clarifies whether the severity of any right knee instability satisfies one of the following criteria for a 30 percent rating under the revised rating criteria for knee instability: (i) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation, (ii) 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. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38C.F.R. §4.71a, DC 5257). For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 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). See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38C.F.R. §4.71a, DC 5257, Note (1) and Note (2)). The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination. 2. Schedule the Veteran for a VA examination by an appropriate examiner to determine the nature and current severity of his service-connected right knee scar disability. The most up-to-date Disability Benefits Questionnaire must be used. The examiner is asked to identify the number, location, size, and other relevant characteristics of all relevant service-connected scars as well as whether any scars are painful or unstable. If so, they should indicate for what period of time those symptoms have been present. All opinions and conclusions must be supported by a full rationale. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination. 3. After completion of the preceding actions, refer the Veteran's claim for TDIU to VA's Director of Compensation Service for extraschedular consideration. Include a copy of this remand as well as a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. See 38 C.F.R. § 4.16(b). All documentation from this entity must be added to the claims file. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, 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.