Citation Nr: 21008983 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 17-21 565 DATE: February 18, 2021 REMANDED Entitlement to an evaluation in excess of 40 percent for service-connected lumbosacral degenerative disc disease with listhesis and spondylosis (hereinafter, service-connected low back disabilities) is remanded. Entitlement to an evaluation in excess of 20 percent for service-connected left knee chondromalacia with meniscal repair and residual scars is remanded. Entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) prior to October 23, 2017, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1972 to May 1975 and in the United States Navy from March 1977 to May 1987 and from January 1988 to September 1994. He also had additional; service of an unverified nature and duration in a Reserve component of the armed forces. This matter comes to the Board of Veterans' Appeals (Board) from an August 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. In September 2020, the Veteran presented oral testimony in support of his appeal at a hearing that was conducted by the undersigned Veterans Law Judge (VLJ) via videoconferencing equipment. A transcript of this hearing is of record. Clarification of issues on appeal In a March 2017 Decision Review Officer (DRO) decision, the AOJ found that revision of an earlier, unnamed rating decision was appropriate due to Clear and Unmistakable Error (CUE) regarding the characterization of the Veteran’s two service-connected left knee disabilities – only one of which was on appeal at the time. In sum, residuals of meniscal repair surgery, to include scarring, was added to the Veteran’s service-connected chondromalacia, and arthritis of the left knee was added to service-connected patellar spurs; however, the 20 percent and 10 percent evaluations, respectively, were continued. The above represents a partial grant of the issue on appeal (chondromalacia with meniscal repair and residual scars, and thus, the issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). As the latter issue (left knee arthritis with patellar spurs) was not on appeal, and the Veteran did not file a formal notice of disagreement concerning this recharacterization, the issue is not currently before the Board. Further, in a January 2018 rating decision, the AOJ established service connection for bilateral pes planus; a 50 percent initial evaluation was assigned, effective from October 23, 2017. A downstream effect of this award is that the Veteran’s combined evaluation was increased to 100 percent from October 23, 2017. Accordingly, his appeal seeking a TDIU is truncated to this extent, and the issue has been recharacterized to reflect this. Green v. West, 11 Vet. App. 472, 476 (1998); Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). 1. Entitlement to an evaluation in excess of 40 percent for service-connected low back disabilities is remanded. 2. Entitlement to an evaluation in excess of 20 percent for service-connected left knee chondromalacia with meniscal repair and residual scars is remanded. At the September 2020 Board hearing, the Veteran asserted that the symptoms and resulting functional impact associated with his service-connected left knee and low back disabilities have increased since the most recent VA examinations were completed in August 2017. These contentions are bolstered by the Veteran’s VA treatment records, which show that these service-connected disabilities have progressed since August 2017. When, as here, the evidence shows that service-connected disabilities have worsened since the most recent VA examination, a remand to provide the Veteran with contemporaneous VA examinations is appropriate. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Further, the Board observes that the April 2017 and August 2017 spine VA examinations are inadequate for the purpose of readjudicating the Veteran’s appeals, as the VA examiners did not quantify the Veteran’s limited motion of the left knee during a flare-up of symptoms. This inadequacy must be corrected on remand. Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017). Finally, the Board observes that Diagnostic Code 5257, by which the Veteran’s service-connected left knee disability on appeal is evaluated, was revised very recently. As these revisions are pertinent to the present appeal and may be applied from the date of implementation (February 7, 2021), a remand is necessary so that the VA examiner can comment on the Veteran’s left knee symptoms with specificity to the revised rating criteria. 3. Entitlement to a TDIU prior to October 23, 2017, is remanded. The record reflects that the Veteran was most recently employed in March 2014 as a computer technician, a job which required him to lift and carry heavy computer equipment for installation. He asserts that the symptoms associated with his service-connected low back and left knee disabilities have prevented him from maintaining a substantially gainful occupation in this field since March 2014. The Veteran’s combined evaluation meets the initial criteria for a schedular TDIU throughout the entirety of the appeal period. This issue is intertwined with the Veteran’s appeals seeking increased evaluations, as a partial or full grant of such could render a portion of this issue moot, depending on the increase and effective date of any potential allowance. Further, the Board, as the ultimate finder of fact, would benefit from a VA examiner’s comments on the impact of the Veteran’s service-connected disabilities, individually and in concert, on his employability throughout the appeal period. The matters are REMANDED for the following actions: 1. The AOJ must obtain and associate with the file all updated records of VA treatment pertinent to the Veteran. 2. The AOJ must contact the Veteran and request that he complete a release for outstanding private treatment records pertinent to the disabilities remanded herein. In these releases, the Veteran should provide a time period in which he was treated at each facility identified. The AOJ should then obtain the records identified by the Veteran. All records obtained should be associated with the Veteran's file. If any identified and requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the file, and the Veteran should be informed in writing. 3. Thereafter, the AOJ must request that the Veteran be scheduled for appropriate VA examinations to evaluate his service-connected low back disabilities and left knee chondromalacia with meniscal repair and residual scars. The complete electronic record must be made available to, and reviewed by, the VA examiner prior to conducting the examination. All necessary studies and tests should be conducted. The examiner must describe the frequency and severity of the manifestations of the Veteran’s service- low back disabilities and low back disabilities and left knee chondromalacia with meniscal repair and residual scars. The size, shape, location, and functional impairment (to include pain, stability, or interference with motion) of each scar must be specifically stated. *Regarding the Veteran’s left knee, the Board wishes to underline that this examination is to evaluate the Veteran’s service-connected left knee chondromalacia with meniscal repair and residual scars as opposed to symptoms associated with his service-connected left knee arthritis and patellar spurs. *To the extent possible, it would be helpful if the examination was scheduled during a flare-up of the Veteran’s service-connected low back disabilities and left knee chondromalacia with meniscal repair and residual scars. The examiner must provide statements identifying the additional functional impairment and limited motion during flare-ups of symptoms. *In addition to reporting the Veteran’s low back and left knee symptoms attributable to these service-connected disabilities, the VA examiner must review the April 2017 and August 2017 VA examinations and, based on the information therein and the Veteran’s VA treatment records contemporaneous with such, retrospectively provide statements identifying the additional functional impairment and limited motion during a flare-up of symptoms at the time of the April 2017 and August 2017 VA examinations. *Regarding the Veteran’s service-connected left knee chondromalacia with meniscal repair, the examiner must ensure that the revised rating criteria of Diagnostic Code 5257 (effective from February 7, 2021) are amply addressed, whether or not the revised criteria are reflected in the provided Disability Benefits Questionnaire. This discussion should include a full description of the whether this disability is manifested by a ligament tear (incomplete, complete), a diagnosed condition involving the quadriceps tendon, the patella, or the patellar tendon, whether or not such has been repaired, and whether assistant devices such as crutches, a walker, and/or a brace have been prescribed by a medical professional. *The examiner is asked to comment on whether the Veteran’s service-connected disabilities, individually or in concert, have rendered him unable to secure and/or maintain a substantially gainful occupation at any time from March 2014 to October 2017. In addressing this point, the examiner must consider the Veteran’s occupational and educational history, but not his age. If the VA examiner’s response involves the concept of “sedentary employment,” he or she must define this term and cite to evidence within the Veteran’s file showing that he has appropriate training and/or experience to participate in such an occupation. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 4. Thereafter, the AOJ must undertake any development necessary to readjudicate the issue of entitlement to a TDIU prior to October 23, 2017, to include obtaining additional information concerning the Veteran’s complete occupational and educational history. 5. Thereafter, the AOJ must readjudicate the Veteran's pending issues in light of any additional evidence added to the record. If any benefit sought on appeal is not granted to the fullest extent, the Veteran and his representative should be furnished with a copy of this readjudication and provided an appropriate opportunity to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, 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.