Citation Nr: 21011912 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 16-50 448 DATE: March 3, 2021 REMANDED Entitlement to an evaluation in excess of 10 percent for right knee patellofemoral syndrome with meniscal and anterior cruciate ligament tear and degenerative arthritis for the period from June 30, 2014 to November 30, 2015 and from May 2, 2016 to September 11, 2020 is remanded. Entitlement to an evaluation in excess of 20 percent for right knee patellofemoral syndrome with meniscal and anterior cruciate ligament tear and degenerative arthritis for the period beginning September 12, 2020 is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 2008 to October 2011. This case is before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the electronic claims file. In January 2020, the Board remanded the matters for more development. Now the matters are returned to the Board. Initially, the Board notes that the previously remanded issue of the Veteran’s entitlement to a temporary total disability rating following a right knee surgery performed in 2015 was fully granted by the RO; thus, that issue is no longer before the Board. See October 2020 Rating Decision (the Veteran was granted a temporary total disability evaluation following a surgical procedure for right knee surgery for the period December 1, 2015 to May 1, 2016). The Veteran is seeking entitlement to a higher evaluation for his service-connected right knee disability. The Board notes that the RO has increased the disability rating for the right knee disability from 10 percent to 20 percent, effective September 12, 2020. However, as the highest possible rating for the disability has not been assigned, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993). Also, the Board has recharacterized issues on appeal to reflect the staged ratings based on the decisions made by the RO during the period on appeal. See Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran’s current right knee disability has been evaluated under Diagnostic Codes 5260 (limitation of flexion), 5003 (degenerative arthritis), and 5258 (dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint). See 38 C.F.R. §§ 4.71a (2019). The Board notes that the Veteran contends that the he is also warranted an additional evaluation under Diagnostic Code 5257 for right knee lateral instability. See January 2016 Notice of Disagreement. In this regard, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). The Board notes that the amendments included revisions to Diagnostic Code 5257. Because the record does not contain sufficient evidence to rate the Veteran’s disability under the new rating criteria under 5257, the Board finds that a new examination to evaluate the current severity of the Veteran’s right knee disability is warranted prior to final adjudication of the matter. As to the Veteran’s claim for entitlement to TDIU, the Board notes that the Veteran’s has had a combined disability rating of 100 percent during the entire period on appeal. However, VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establish entitlement to Special Monthly Compensation under 38 U.S.C. § 1114. As the Veteran has not been awarded the maximum benefits sought for the entire appeal period, the issue is not moot and entitlement to TDIU remains on appeal. See Bradley v. Peake, 22 Vet. App. 280 (2008), Buie v. Shinseki, 24 Vet. App. 242 (2010). Because decisions on the remanded issues of increased ratings for the Veteran’s right knee disability could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. Thus, a remand of the claim for TDIU is also required. Accordingly, the matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction should schedule the Veteran for an examination by an appropriate medical examiner to determine the current severity of his service-connected right knee patellofemoral syndrome with meniscal and anterior cruciate ligament tear and degenerative arthritis. The examiner must review the Veteran’s claims file and a copy of this REMAND order in conjunction with the examination. (a.) The examiner should provide a full description of the Veteran’s right knee disability and report all signs and symptoms necessary for evaluating it under the new rating criteria. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. (b.) The examiner is specifically asked to provide: 1) whether the Veteran has had sprain, incomplete ligament tear, or repaired complete ligament tear related to his right knee disability; 2) whether the Veteran has had unrepaired or failed repair of complete ligament tear causing persistent instability related to the right knee disability; and 3) whether the Veteran requires prescription by a medical provider for either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation due to his right knee disability. (c.) The examiner is also asked to provide: 1) whether the Veteran has a diagnosed right knee condition involving the patellofemoral complex with recurrent instability (with or without surgical repair); and 2) whether the Veteran requires a prescription from a medical provider for a brace, cane, or walker for the patellar instability. (d.) To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s service-connected right knee patellofemoral syndrome with meniscal and anterior cruciate ligament tear and degenerative arthritis and discuss the effect of the disability on any occupational functioning and activities of daily living. (e.) If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms or functional impairments 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. (f.) The examiner must provide a complete written rational for any opinion rendered. 2. After completing the above actions and any other necessary development, the issues on appeal, including the inextricably intertwined issue of the Veteran’s entitlement to TDIU, must be readjudicated. If the claims remain denied, a Supplemental Statement of the Case must be provided to the Veteran and his attorney. After the Veteran and his attorney have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. E. Kim, 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.