Citation Nr: 21011826 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 17-05 141 DATE: March 2, 2021 ISSUES Entitlement to an increased evaluation of chondromalacia patella, left knee, currently evaluated at 20 percent disabling. Entitlement to an increased evaluation of chondromalacia patella, right knee, currently evaluated at 10 percent disabling. Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis. REMANDED Entitlement to an increased evaluation of chondromalacia patella, left knee, currently evaluated at 20 percent disabling is remanded. Entitlement to an increased evaluation of chondromalacia patella, right knee, currently evaluated at 10 percent disabling is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from June 1973 to August 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). By way of background, the Veteran was granted service connection for his left and right knee chondromalacia patella in July 1976 with 0 percent ratings assigned effective August 25, 1975. In January 1997 the Veteran filed for increased ratings and in April 1989 was assigned 10 percent ratings effective July 27, 1977 for both his left and right knee disabilities. The Veteran appealed the decision, and in an August 2003 decision the Board increased the Veteran’s rating for his left knee disability to 20 percent effective January 27, 1997. In April 2013 the Veteran filed for increased ratings for both his left and right knee disabilities which were both denied in the November 2013 rating decision which is currently on appeal. The Veteran testified in a videoconference Board hearing in January 2021 before the undersigned Veterans Law Judge (VLJ). A transcript of the proceeding is associated with the claims file. The Board observes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for total disability rating for compensation based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. At the September 2021 Board hearing the undersigned VLJ accepted the issue of entitlement to a TDIU to include on an extraschedular basis because the Veteran alleged that he is unable to obtain or retain gainful employment because of his left and right knee disabilities currently on appeal before the Board. This is discussed further below. The Board finds that further evidentiary development is required before the claims on appeal can be adjudicated. 1. Entitlement to an increased evaluation of chondromalacia patella, left knee, currently evaluated at 20 percent disabling is remanded. 2. Entitlement to an increased evaluation of chondromalacia patella, right knee, currently evaluated at 10 percent disabling is remanded. The Veteran contends that his left and right knee disabilities are more severely disabling than reflected in the currently assigned ratings. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). As a result, a complete medical history of the Veteran is required for a ratings evaluation. This is in order to protect claimants against adverse decisions based on a single, incomplete, or inaccurate report and to enable VA to make a more precise evaluation. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran was last afforded a VA examination for his left and right knee disabilities in October 2013. Subsequently at the January 2021 Board hearing the Veteran testified that his service-connected disabilities have continued to worsen since his last VA examination. Specifically, the Veteran testified that he now must use a knee brace and cane. The Board notes that at the time of the October 2013 examination the Veteran was only reported to use a knee brace. The Veteran also testified that he has been falling quite a bit since his last examination. The Veteran reported that he has had to move to a first-floor apartment because of his issues with falling due to his knees. The United States Court of Appeals for Veterans Claims has held that when a Veteran alleges that his service-connected disability has worsened since the last examination, a new examination may be required to evaluate the current degree of impairment. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Therefore, as the Veteran last underwent a VA knee examination in October 2013, he should be afforded a new VA examination to assess the current nature, extent and severity of his service- connected left and right knee chondromalacia patella. Additionally, although the October 2013 VA examiner reported normal stability testing, the Board notes that the Veteran has reported symptoms of right and left knee instability over the period on appeal, as well as the use of a knee brace and cane. The Veteran is competent to report his symptoms of instability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Court in English has held that the Board must consider lay testimony of knee instability when considering whether to assign a rating under Diagnostic Code 5257 regarding the presence of knee lateral instability. English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). As such, upon remand the examiner should not only assess any left and right knee lateral instability found, but should illicit from the Veteran a complete description of the instability experienced, and provide an opinion as to whether such reported instability is consistent with the objective manifestations of such found on examination, and provide a rationale for any such assessment. 3. Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis is remanded. As mentioned earlier, the Board has inferred the claim of TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447, 45354 (2009). At the January 2021 Board hearing the Veteran testified that he is no longer able to work due to his service-connected knee disabilities. He stated that he is no longer able to do any prolonged standing, sitting or lifting due to the severity of the pain in his knees. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the veteran's service- connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include 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. 38 C.F.R. § 4.16 (b). 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). The determination of whether a Veteran is unable to secure or follow a substantially gainful occupation is a legal one, to be undertaken on a case-by-case basis. See Withers v. Wilkie, 30 Vet. App. 139 (2018) (holding the meaning and relevance of the term sedentary work will have to be discerned on a case-by-case basis from the medical and lay evidence presented and considering each veteran's education, training, and work history). In the instant case the Veteran does not have any single service-connected disability that is rated at 60 percent, nor does he have a combined rating for two or more service-connected disabilities of at least 70 percent with at least one disability rated at 40 percent. Therefore, at this time the Board finds that he does not meet the schedular requirements for TDIU. The Board notes that the issue of entitlement to a TDIU is inextricably intertwined with the outcome of the Veteran's claims for increased ratings regarding his left and right knee disabilities, as remanded herein. Rice v. Shinseki, 22 Vet. App. 447 (2009) (finding that a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation). Therefore, the Board cannot adjudicate the Veteran's TDIU claim until the development requested for the claim for increased ratings is accomplished. The Board also notes that the issue of TDIU has not been considered by the RO in the first instance. Thus, the Board defers consideration of TDIU until further development is complete. Last, as noted above, the Veteran does not currently meet the percentage threshold requirements for TDIU for the period on appeal. VA's policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the percentage evaluations. 38 C.F.R. § 4.16 (b). However, the Board is prohibited from assigning TDIU on the basis of 38 C.F.R. § 4.16 (b) in the first instance without ensuring that the claim is referred to VA's Director of Compensation and Pension (C&P) for consideration of an extraschedular rating under 38 C.F.R. § 4.16 (b). Bowling v. Principi, 15 Vet. App. 1 (2001). Accordingly, after development upon remand, if the Veteran does not meet the threshold criteria for TDIU for any period on appeal, and there is evidence of unemployability due solely to service-connected disabilities, then the case should be submitted to the Director, Compensation and Pension Service, for extra-schedular consideration of a TDIU. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records regarding the Veteran's treatment for his service-connected right and left knee chondromalacia patella.  2. Send the Veteran a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability and VA Form 21-4192, Request for Employment Verification, to be fully completed and returned to VA. The Veteran may also submit copies of any leave and earnings statements attached to these documents. 3. Schedule the Veteran for a new VA examination with a VA medical professional with expertise in orthopedics, and to determine the current nature and severity of his service- connected right and left knee chondromalacia patella. The electronic record, to include a copy of this remand, must be reviewed in conjunction with the examination. All testing deemed necessary must be conducted and results reported in detail. Ensure that the examiner provides all information required for rating purposes. The examiner should: Conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, express any functional loss in terms of additional degrees of limited motion of the Veteran's right and left knees, i.e., the extent of the Veteran's pain-free motion. Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), please record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. If a joint cannot be tested on "weight-bearing," please specifically indicate why that testing cannot be done. Pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is instructed to inquire whether there are periods of flare-ups. If the answer is "yes," the examiner should state their severity, frequency, and duration explaining if there are any additional or increased symptoms and limitations experienced during flares. The examiner(s) must ALSO name the precipitating and alleviating factors. The examiner(s) must ALSO estimate, "per [the] veteran," to what extent, if any, they affect functional impairment. The examiner must in particular render an opinion as to the current severity of any radiculopathy. The examiner should note the symptomatology attributable to any radiculopathy and comment as to whether the symptoms are best described as mild, moderate, or severe incomplete nerve paralysis or complete paralysis. The examiner should also comment on the Veteran's ability to function in an occupational or worklike setting, and describe any functional impairment caused solely by his service-connected right and left knee chondromalacia patella(specifically taking into account the Veteran's neurological and orthopedic manifestations). The examiner should specifically comment on the Veteran's use of a knee brace and cane and their purposes (i.e., for support, for mobility, for weight-redistribution, for instability, for pain-relief, to prevent injury, etc.). The examiner must reconcile any finding of instability with any reports of such, and with his use of a brace and cane. The examiner should also indicate whether there are any symptom(s) or impairment associated with the knee disabilities that are not encompassed by the schedular criteria. 4. Thereafter, adjudicate the Veteran's TDIU claim, to include extraschedular consideration. If the Veteran does not meet the schedular requirements for TDIU, the case should be referred to the Director of Compensation Service for consideration of whether a TDIU on an extraschedular basis is warranted. If so, please include 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). 5. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Nettey, 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.