Citation Nr: 21075093 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 17-39 119 DATE: December 17, 2021 REMANDED The claim for a disability rating in excess of 10 percent prior to September 14, 2015 for limitation of flexion for the left knee, excluding the period which a temporary total rating has been assigned, is remanded. The claim for a disability rating in excess of 10 percent prior to September 14, 2015 for left knee instability, excluding the period which a temporary total rating has been assigned, is remanded. The claim for a disability rating in excess of 30 percent prior to January 25, 2021, and in excess of 60 percent thereafter, for left knee total replacement, excluding the period which a temporary total rating has been assigned, is remanded. The claim for service connection for hypertension is remanded. The claim for a total disability rating based on individual unemployability (TDIU) prior to September 1, 2014 is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from November 1980 to March 1988. This matter before the Board of Veterans' Appeals (Board) is on appeal from a March 2014 rating decision and a January 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana (Agency of Original Jurisdiction (AOJ)). In March 2019, the Board remanded these claims for additional development. 1. The claim for a disability rating in excess of 10 percent prior to September 14, 2015 for limitation of flexion for the left knee, excluding the period which a temporary total rating has been assigned, is remanded. 2. The claim for a disability rating in excess of 10 percent prior to September 14, 2015 for left knee instability, excluding the period which a temporary total rating has been assigned, is remanded. 3. The claim for a disability rating in excess of 30 percent prior to January 25, 2021, and in excess of 60 percent thereafter, for left knee total replacement, excluding the period which a temporary total rating has been assigned, is remanded. In September 2015, the Veteran underwent a total left knee arthroplasty. As of November 2016, the Veteran's left knee disability has been rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5055. Under DC 5055, for one year following the implantation of a knee prosthesis, a 100 percent disability rating is assigned. Thereafter, the minimum disability rating which may be assigned, post-knee replacement is 30 percent. A 60 percent disability rating is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. With intermediate degrees of residual weakness, pain or limitation of motion, adjudicators are instructed to rate by analogy to Diagnostic Codes 5256 (knee ankylosis), 5261 (limitation of leg extension), or 5262 (impairment of the tibia and fibula). DC 5055 does not contemplate instability and therefore, a separate rating may be warranted in some cases under DC 5257. Cf. 38 C.F.R. §§ 4.14. The Board must consider all applicable criteria in evaluating the Veteran's claims. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Effective February 7, 2021, the applicable rating criteria for certain musculoskeletal disabilities were revised. 85 Fed. Reg. 76453 (Nov. 30, 2020). When regulations are revised during the course of an appeal, the Board is generally required to consider the claim in light of both the former and revised schedular criteria and to apply the regulation more favorable to the Veteran. The new rating criteria, however, may be applied only prospectively from the effective date of the change forward, unless the regulatory change specifically permits retroactive application. VAOPGCPREC 3-2000 (Apr. 10, 2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The final rule did not specifically permit retroactivity of the changes. The Board has an independent obligation to consider all potentially applicable provisions of law and regulation and to apply the diagnostic criteria in a manner that maximizes benefits. The criteria of Diagnostic Code 5257 were revised to include criteria for patellofemoral complex (defined as consisting of the quadriceps tendon, the patella and patellar tendon) instability which is potentially relevant to the disabilities at hand. Specifically, the Veteran was prescribed use of a knee brace in 2013. Therefore, on remand, the Veteran should be afforded a VA examination to determine the current severity and nature of his left knee disabilities. See Chotta v. Peake, 22 Vet. App. 80 (2008). The AOJ should consider the revised criteria in the first instance. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). To the extent that the claims predate the new criteria, piecemeal litigation is to be avoided in the interest of judicial efficiency as piecemeal litigation adds confusion and wastes judicial resources. Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). 4. The claim for service connection for hypertension is remanded. The Veteran contends that his hypertension is etiologically related to his active-duty service. Specifically, he claims that his hypertension began while he was in the military with an onset in 1989, right after he separated from the Army. In connection with his claim, he received a VA examination in January 2021. While the examiner noted a diagnosis of hypertension, she opined it was less likely than not that the Veteran's hypertension was incurred in or caused by his active-duty service. She explained that his blood pressure readings on his enlistment examination, a periodic examination dated January 1987, and his separation examination were all within normal limits and that a review of medical records does not indicate any hypertension during active duty of within one year of discharge. However, the record contains a VA examination dated April 1988 that includes three blood pressure readings that may be significant (135/85, 130/80, and 130/82). The examiner did not document this evidence and it is unclear whether this evidence was considered in formulating her opinion, or whether these readings are probative of the claim. Accordingly, the Board will remand for a new etiological opinion that considers this evidence. 5. The claim for a TDIU prior to September 1, 2014 is remanded. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 38 C.F.R. § 4.16(a) provides that consideration of such a rating is warranted if a veteran has one service-connected disability rated 60 percent or more or, if there are two or more such disabilities, there must be at least one that is rated 40 percent or more, with all disabilities combining to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran first met the established threshold of a combined 70 percent rating to qualify for TDIU on September 1, 2014. Prior to this, with the exception of periods of convalescence, his combined disability rating was below 70 percent and thus did not meet the schedular threshold percentage requirements for consideration of a TDIU under 38 C.F.R. § 4.16(a). Accordingly, entitlement to a TDIU on a schedular basis cannot be considered. That notwithstanding, all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the TDIU threshold percentage standards, should be referred to the Director of Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16(b). In this regard, the Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance but must first remand the claim for referral to VA's Director of Compensation Service if such consideration is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Recently, the Court addressed the appropriate standard for the Board to apply in determining whether to remand the issue of entitlement to a TDIU pursuant to 38 C.F.R. § 4.16(b) for referral to the Director. Ray v. Wilkie, 31 Vet. App. 58 (2019). The question for the Board is whether there is sufficient evidence to substantiate a reasonable possibility that a Veteran is unemployable by reason of his service-connected disabilities. Id. In this case, the record reflects that the Veteran last worked full time in March 2008 and reportedly became too disabled to work in July 2008. Consequently, a remand for entitlement to a TDIU pursuant to 38 C.F.R. § 4.16(b) for referral to the Director is warranted. The matters are REMANDED for the following action: 1. Afford the Veteran an orthopedic examination to determine the current severity of his left knee disabilities. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. 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). 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 the 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). The examiner should state whether the Veteran has a history of patellofemoral complex (defined as consisting of the quadriceps tendon, the patella and patellar tendon) instability, and, if so, discuss the severity of the Veteran's patellofemoral complex symptoms. The examiner should provide a complete rationale for any opinions provided. 2. Obtain an opinion regarding the etiology of the Veteran's hypertension from a qualified medical professional. The claims file must be made available to, and be reviewed by, the examiner. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that: a) the Veteran's hypertension occurred in or is otherwise etiologically related to the Veteran's military service, or b) was manifested within one year of separation from service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. The examiner should specifically discuss the blood pressure readings in the Veteran's April 1988 VA examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. The AOJ should refer the Veteran's claim of entitlement to TDIU on an extraschedular basis prior to September 1, 2014 to the Director of Compensation Service to determine whether an extraschedular rating is warranted under 38 C.F.R. § 4.16(b). T. Stephen Eckerman Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Victoria A. Banis, 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.