Citation Nr: 21074795 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 16-30 627 DATE: December 16, 2021 REMANDED Entitlement to an increased rating for traumatic arthritis of the right knee in excess of 20 percent is remanded. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1976 to June 1979 and from October 1980 to August 1985. This matter comes before the Board of Veterans' Appeals on appeal from an October 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2021, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is included in the claims file. Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that VA must address the issue of entitlement to TDIU in increased-rating claims when the issue of unemployability either is raised expressly or by the record. The Board concludes that the TDIU claim is properly before it under Rice as the Veteran has asserted, in September 2021 during his Board hearing, that his service-connected traumatic arthritis of the right knee has contributed to his inability to secure and maintain substantially gainful employment. Accordingly, the Board is assuming jurisdiction over the TDIU claim on a derivative basis. Lastly, the Board notes the Veteran referenced an appeal pertaining to clothing allowance in 2012, 2013, and 2014. See April 2016 VA Form 9. However, as it does not appear that this issue has been adjudicated, it is referred to the Agency of Original Jurisdiction (AOJ) for appropriate development. 1. Entitlement to an increased rating for traumatic arthritis of the right knee in excess of 20 percent, is remanded. The Veteran seeks a higher evaluation for his traumatic arthritis of the right knee. Specifically, the Veteran contends that his traumatic arthritis of the right knee causes constant pain, swelling, and locking. The Veteran reports sleeping in a night splint and that his pain runs from his knee to his heal and through his foot. The Veteran also reports instability of his knee and the use of a knee brace, limited motion, and locking. Lastly, the Veteran stats the pain associated with his knee hinders his ability to travel and attend the doctor. See March 2015 Notice of Disagreement; April 2016 VA Form 9; September 2021 Board Videoconference Hearing. The Board is not required to seek a new VA medical examination based solely on the mere passage of time. Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007). However, a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). Reexaminations will be requested whenever VA determines there is a need to verify either the continued existence or the current severity of a disability. 38 C.F.R. § 3.327(a). The Veteran was last examined in October 2014 in conjunction with his traumatic arthritis of the right knee. See October 2014 VA Knee Examination. The Veteran was last afforded an examination of his right knee 7 years ago, and he has asserted worsening in writing and at his September 2021 Board hearing. Thus, the Board finds a new examination is necessary to assess the current severity of the right knee disorder. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Furthermore, the Board notes that, effective February 7, 2021, VA amended the criteria for rating musculoskeletal system and muscle injuries disabilities. See 83 Federal Register 76453 (November 30, 2020). VA published in the Federal Register the proposed rule for Schedule for Rating Disabilities: musculoskeletal system and muscle injuries on November 30, 2020. The summary in the Federal Register notes that the purposed of this revision is to ensure that the schedule uses current medical terminology and provided detailed and updated criteria for the evaluation of the musculoskeletal disabilities. Notably, the revised changes affected the criteria for instability of the knee under Diagnostic Code 5257 and for impairment of the tibia and fibula under Diagnostic Code 5262. 2. Entitlement to TDIU is remanded. The record indicates that a TDIU claim has been raised by the Veteran during the pendency of this appeal. Per Rice v. Shinseki, supra, VA must address the issue of entitlement to TDIU in increased-rating claims when the issue of unemployability is raised either expressly or by the record. The Veteran raised the issue of TDIU expressly at his September 2021 Board hearing. The Veteran must be provided with specific notice and adjudication concerning his TDIU claim on remand, and should be allowed an opportunity to update VA on his more recent employment record (if any). 38 C.F.R. § 3.159(b). The matters are REMANDED for the following action: 1. Contact the Veteran, via a 38 C.F.R. § 3.159(b) notice letter addressing his TDIU claim and furnish the Veteran a VA form 21-8940. Complete any development and adjudication warranted by the Veteran's response, including obtaining all outstanding medical records in accordance with the duties of 38 C.F.R. § 3.159(c). 2. Afford the Veteran a VA knee examination with a qualified medical examiner who has reviewed the claims file in conjunction with the examination. The most current Disability Benefits Questionnaire must be employed, and all relevant findings indicated in that questionnaire must be addressed. Examinations must include joint testing for pain on both active and passive motion, and in weight-bearing and nonweight-bearing when appropriate. If necessary, radiographic images should be taken of the Veteran's right knee. The examiner must assess any knee instability under the rating criteria in effect prior to February 7, 2021 as well as the revised rating criteria effective February 7, 2021. All opinions must be supported by a rationale. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David B. Scheirich, 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.