Citation Nr: 21013069 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 16-08 384 DATE: March 8, 2021 ORDER Entitlement to an evaluation of 60 percent for service-connected left knee disability from November 1, 2014 to January 28, 2016 is granted. Entitlement to an evaluation in excess of 60 percent for service-connected left knee disability is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. REMANDED Entitlement to an evaluation in excess of 10 percent prior to January 28, 2016 for service-connected left trigeminal nerve neuralgia disability is remanded. Entitlement to an evaluation in excess of 30 percent from January 28, 2016 for service-connected left trigeminal nerve neuralgia disability is remanded. Entitlement to an evaluation in excess of 10 percent for service-connected left knee disability prior to November 1, 2014 (exclusive of a period of temporary total rating from September 27, 2013 through November 1, 2014) is remanded. FINDINGS OF FACT 1. Beginning November 1, 2014, the Veteran’s left knee disability is characterized by chronic residuals consisting of severe painful motion and weakness. 2. Beginning November 1, 2014, the Veteran’s left knee disability has been assigned a 60 percent rating, the maximum rating available and authorized under all applicable diagnostic codes (DCs) and the provisions of 38 C.F.R. § 4.68 relating to the amputation rule; his knee disability did not more nearly approximate the loss of use of his left leg and he has not undergone a prosthetic replacement of the knee joint during the appeal period. 3. The Veteran was asked to provide information necessary to adjudicate his claim of entitlement to a TDIU, to include submitting a completed VA Form 21-8940; more than a year has lapsed since the initial request, and he has not submitted the requested evidence and information. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation of 60 percent for service-connected left knee disability from November 1, 2014 to January 28, 2016 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.59, 4.71a, Diagnostic Code (DC) 5055. 2. The criteria for entitlement to an evaluation in excess of 60 percent for service-connected left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.59, 4.68, 4.71a, Diagnostic Code (DC) 5055. 3. By failing to submit requested information and/or forms for critical evidence needed to properly adjudicate her claim of TDIU, the Veteran has abandoned such claim, and his appeal in this matter must also be considered abandoned. 38 U.S.C. §§ 5107, 7105(d)(5); 38 C.F.R. § 3.158(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1979 to September 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In a September 2019 decision, the Board denied a rating in excess of 10 percent prior to January 28, 2016, for service-connected left trigeminal nerve neuralgia disability and a rating in excess of 30 percent from January 28, 2016, for service-connected left trigeminal nerve neuralgia disability. The Veteran appealed the Board’s September 2019 decision to the United States Court of Appeals for Veterans Claims (Court), which in an October 2020 order, granted the parties’ joint motions for partial remand (JMPR), vacating the Board’s September 2019 decision and remanding the claim for compliance with the terms of the JMPR. The matters of increased ratings for a left knee disability and entitlement to a TDIU were remanded by the Board in September 2019 for additional development. 1. Entitlement to an evaluation of 60 percent for service-connected left knee disability from November 1, 2014 to January 28, 2016. 2. Entitlement to an evaluation in excess of 60 percent for service-connected left knee disability from January 28, 2016. In a December 2013 rating decision, the RO assigned a temporary total rating, effective from September 27, 2013 to November 1, 2014, and thereafter 30 percent for the Veteran’s left knee disability. In a February 2016 rating decision, the RO assigned an increased disability rating of 60 percent for the Veteran’s left knee disability, effective January 28, 2016. The Veteran’s total right knee replacement and its residuals are rated under Diagnostic Code 5055. Diagnostic Code 5055 provides a 100 percent rating for one year following implantation of prosthesis; a 60 percent rating for chronic residuals consisting of severe painful motion or weakness in the affected extremity; and a 30 percent minimum rating for intermediate degrees of residual weakness, pain or limitation of motion rate by analogy to diagnostic codes 5256, 5261, or 5262. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran’s claim. Effective February 7, 2021, the new regulation changed Diagnostic Code 5055 and added “Resurfacing” to the section title as it is a newer treatment approach similar to replacement and is now rated the same as replacement for the 100 percent rating period, but not afterwards. Notes were added to preclude an additional rating under 4.71a when there is a rating under this section and to clarify that replacement means a “total replacement.” The 100 percent rating was changed from 12 months to 4 months following implantation of prosthesis or resurfacing. Since his total knee replacement surgery on September 27, 2013, the Veteran has asserted that his knee injury has not improved at all and more problems have occurred since the surgery. The Veteran has complained of pain, swelling, stiffness, numbness, weakness, and limited range of motion in his left knee. He has stated that it is hard for him to sit, stand, walk, or use stairs, and he loses his balance and has fallen a couple of times. See Correspondence, July 2015 and February 2016; see also VA Examination, January 2016. Further, during the January 2016 examination, the Veteran reported that he experiences flare ups and feels like his left knee is the same or worse than it was before the surgery. He reported that he feels pain with motion and his knee fatigues easily. Resolving all reasonable doubt in the Veteran’s favor, the Board finds the Veteran’s left knee disability warrants a rating of 60 percent under Diagnostic Code 5055 beginning November 1, 2014. However, a rating in excess of 60 percent is not warranted. The amputation rule provides, in pertinent part, that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were an amputation to be performed. 38 C.F.R. § 4.68. As relevant here, amputation of the leg at the knee warrants a 60 percent rating under DC 5162. 38 C.F.R. § 4.71a. While a rating of 100 percent is available for the year following knee replacement under DC 5055, the Veteran has not had a knee replacement during the relevant period on appeal and has previously been awarded the 100 percent rating following his previous knee replacement surgery. Therefore, any rating for the Veteran’s left knee disability should not exceed 60 percent because this would run afoul of the amputation rule under 38 C.F.R. § 4.68. The Board finds that the Veteran has at least been assigned the maximum 60 percent rating, which contemplates chronic residuals consisting of severe painful motion or weakness, available for his service-connected left knee disability under the applicable rating criteria, beginning November 1, 2014. The assignment of a disability rating in excess of 60 percent for this period is not feasible. 3. Entitlement to a TDIU. When evidence requested in connection with an original claim or a claim for increase is not furnished within a year of the request, the claim will be considered abandoned. 38 C.F.R. § 3.158(a). In a correspondence written and received in January 2016, the Veteran stated that he is unemployed and that his service-connected left knee and left trigeminal nerve neuralgia disabilities prevent him from securing or following a substantially gainful occupation. Specifically, he stated that he has lost two jobs due to being unable to lift more than 50 pounds, and that he has difficulty swallowing food. The issue of TDIU was adjudicated and denied by the RO because the Veteran did not complete, sign, and return Form 21-8940, Veterans’ Application for Increased Compensation Based on Unemployability. In September 2019, the Board found that the issue of entitlement to a TDIU had been raised by the record and is for adjudication as part and parcel of the Veteran’s claim for increased ratings for service-connected left knee and left trigeminal nerve neuralgia disabilities. As the claim was inextricably intertwined with the appeal for an increased rating for service-connected left knee disability, the Board remanded the issue in September 2019. By a September 2019 letter, the RO informed the Veteran that he may be entitled to compensation at the 100 percent rate if he is unable to secure and follow a substantially gainful occupation because of his service-connected disability. The letter further directed the Veteran to complete, sign, and return the enclosed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. The letter also included a section detailing the legal and evidentiary requirements for a TDIU. The Veteran’s claim of entitlement to a TDIU was denied by the RO in an August 2020 supplemental statement of the case (SSOC). The SSOC noted that the claim was denied, in part because the RO had not received a completed VA Form 21-8940. To date, the Veteran has not submitted a VA Form 21-8940 or comparable statement containing the requested information. A VA Form 21-8940 asks a veteran which service-connected disability or disabilities prevent him from securing or following a substantially gainful occupation, and the treatment he has received for the disability(ies). The veteran is further asked to supply information about his employment, including dates when his disability(ies) affected full-time employment, the date the veteran last worked full-time, and the date the veteran became too disabled to work. VA Form 21-8940 also requests information regarding the veteran’s employment, educational, and training history, to include all employers for the last five years, the hours worked per week, the time lost from illness, the circumstances under which the veteran left his last job, and whether the veteran has attempted to obtain employment since he became too disabled to work. The critical facts at this stage are clear. The Veteran has not provided the information or VA forms necessary for VA to adjudicate his claim of entitlement to a TDIU rating. Although the record contains some information regarding his employment history, the Veteran has not provided all of the information necessary to adjudicate his claim for a TDIU rating. The Board is presented with a less-than-complete evidentiary picture, made so by the Veteran’s failure to cooperate. In such circumstances, proper adjudication on the merits is not possible. The governing regulation in this situation, 38 C.F.R. § 3.158(a), is clear and unambiguous, and mandates that the claim will be considered abandoned. See Hurd v. West, 13 Vet. App. 449, 452 (2000) (when the RO requests additional evidence and the appellant does not respond within one year, the claim is considered abandoned under 38 C.F.R. § 3.158); Wamhoff v. Brown, 8 Vet. App. 517, 521-22 (1996) (when an appellant does not furnish the requested evidence within the specified one year of the request, the RO is required, by VA regulations, to consider the claim abandoned). Notably, the Court has held that even if an appellate is ignorant of the abandonment provisions of 38 C.F.R. § 3.158(a), VA regulations are “binding on all who seek to come within their sphere,” regardless of whether an appellant has actual knowledge of what is in the regulations. See Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012). Hence, the Board has no recourse but to conclude that because of his failure to cooperate the Veteran has abandoned his claim. As such, the Board finds that the claim of entitlement to a TDIU must be denied. REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 10 percent prior to January 28, 2016 for service-connected left trigeminal nerve neuralgia disability is remanded. 2. Entitlement to an evaluation in excess of 30 percent from January 28, 2016 for service-connected left trigeminal nerve neuralgia disability is remanded. In the October 2020 joint motion for partial remand, the parties determined that the Board failed to provide an adequate statement of reasons or bases regarding how it defined subjective criteria being applied under Diagnostic Code 8405 and failed to consider and discuss the probative value of the Veteran’s lay statements. Thus, the Board must remand this matter for compliance with the Court’s October 2020 order granting the parties’ joint motion to remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the JMPR or explain why the terms will not be fulfilled.). As the most recent examination for the Veteran’s left trigeminal nerve neuralgia disability is from January 2016, the Board finds that a remand is necessary to afford the Veteran a new VA examination to determine the current severity of his service-connected disability. The Board asks that the examiner provide a definition for the terms “moderate” and “severe” as they relate to the Veteran’s disability and consider all lay statements of record. 3. Entitlement to an evaluation in excess of 10 percent for service-connected left knee disability prior to November 1, 2014 (exclusive of a period of temporary total rating from September 27, 2013 through November 1, 2014) is remanded. In its September 2019 remand, the Board specifically directed the RO to obtain a retrospective medical opinion as to all measurements required to evaluate the degree of disability for the left knee for the periods on appeal, as well as a retrospective opinion addressing the frequency, duration, characteristics, severity and functional loss during periods of flare ups. The January 2020 medical opinion that was obtained in response to the Board’s remand did not substantially comply with this directive as it did not provide a retrospective opinion. The Board regrets additional delay but finds that remand is necessary to obtain a new medical opinion. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Obtain all outstanding medical records. 2. Schedule the Veteran for an appropriate VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the current nature and severity of his service-connected left trigeminal nerve neuralgia. All necessary tests should be performed. All findings should be reported in detail. The examiner should provide a definition for the terms of “moderate” and “severe” as they relate to the Veteran’s service-connected left trigeminal nerve neuralgia. In reaching a conclusion, the VA examiner must acknowledge and discuss the lay and medical evidence of record. 3. Thereafter, obtain a retrospective medical opinion for the period prior to September 27, 2013 for the Veteran’s service-connected left knee disability. The examiner should provide a retrospective opinion as to all measurements required to evaluate the degree of disability for the left knee for the periods on appeal, as well as a retrospective opinion addressing the frequency, duration, characteristics, severity, and functional loss during periods of flare-ups. The VA examiner should describe the additional loss in degrees, if possible. The examiner must review the entire record and consider all pertinent medical and lay evidence. All pertinent symptomatology and findings must be reported in detail. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.