Citation Nr: 21015211 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 16-04 706 DATE: March 16, 2021 REMANDED Entitlement to an initial rating higher than 10 percent for degenerative joint disease of the left knee is remanded. Entitlement to an initial compensable rating for right knee scars is remanded. Entitlement to an initial compensable rating for left knee scars is remanded. Entitlement to a rating in excess of 20 percent for right knee patellar chondromalacia and degenerative arthritis (except for a period when a temporary 100 percent rating was in effect) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1976 to January 1984. These matters initially came before the Board of Veterans’ Appeals (Board) from April 2012 and March 2015 rating decisions. In the April 2012 decision, the agency of original jurisdiction (AOJ) awarded service connection for degenerative joint disease of the left knee and assigned an initial 10 percent disability rating, from April 13, 2011. In the March 2015 decision, the AOJ awarded a temporary 100 percent disability rating for right knee patellar chondromalacia and degenerative arthritis due to surgical or other treatment requiring convalescence, from December 19, 2014 through February 28, 2015. A 20 percent disability rating was assigned, from March 1, 2015. The Veteran testified before a Veterans Law Judge (VLJ) at an October 2019 hearing and a transcript of the hearing is associated with his claims file. The VLJ who conducted the hearing is no longer employed at the Board and is unable to participate in any further adjudication. In January 2020, the Board expanded the appeal to include the inferred issue of entitlement to a TDIU, as part and parcel of the higher rating matters on appeal. See Harper v. Wilkie, 30 Vet. App. 345 (2018); Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded the TDIU issue, as well as the issues of entitlement to higher ratings for the service-connected left and right knee disabilities, for further development. In January 2021, the Board sent the Veteran a letter which informed him that the VLJ who conducted the October 2019 hearing was no longer employed at the Board, and asked him to indicate whether he wanted to attend a new hearing. The Veteran responded later in January 2021 that he did not wish to have a new Board hearing. As for characterization of the issues on appeal, as the Veteran was awarded a 100 percent rating from December 19, 2014 through February 28, 2015 for his service-connected right knee disability, the rating for this disability during this period will not be addressed by the Board. Cf. AB v. Brown, 6 Vet. App. 35, 38 (1993). 1. Entitlement to an initial rating higher than 10 percent for degenerative joint disease of the left knee, entitlement to initial compensable ratings for left and right knee scars, and entitlement to a rating in excess of 20 percent for right knee patellar chondromalacia and degenerative arthritis (except for a period when a temporary 100 percent rating was in effect) are remanded. The Veteran was most recently afforded a VA examination to assess the severity of his service-connected left and right knee disabilities in March 2020. 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). These amendments include additional criteria for rating knee instability under Diagnostic Code 5257, and the instability ratings are dependent upon the type of instability, whether it is a residual of certain surgical procedures, and whether or not medical providers have prescribed assistive devices/braces. In this case, the Veteran has reported bilateral knee instability throughout the claim period, he has undergone multiple knee surgeries, and he has reported the use of a cane and braces for his knees. As the record currently stands, there is not sufficient evidence to properly rate the Veteran’s knee disabilities under the new rating criteria. Therefore, he should be afforded an appropriate examination upon remand. Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the VA Palo Alto Health Care System and are dated to July 2020. Any VA treatment records are within VA’s constructive possession and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. Lastly, as additional information will be obtained during the requested VA knee examination which is pertinent to the issues of entitlement to higher initial ratings for left and right knee scars, Board action on these matters at this time would be premature. Hence, these matters are being remanded, as well. 2. Entitlement to a TDIU due to service-connected disabilities is remanded. The Veteran reported on a July 2015 “Veteran’s Application for Increased Compensation Based on Unemployability” form (VA Form 21-8940) that he was unemployed and that he stopped working in April 2013. However, his VA treatment records reflect that has worked as a youth sports referee throughout the claims period, and that he has continued with this employment as recently as March 2020 (see a March 2020 VA chiropractic note). Thus, a remand is warranted to seek clarification as to the Veteran’s employment history during the claim period, to include by way of contacting his identified employers. Also, all outstanding VA treatment records should be secured upon remand. Moreover, since a decision on the remanded higher rating matters could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim for a TDIU is required. The matters are REMANDED for the following action: 1. Ask the Veteran to report his employment history and earnings during the period since April 2011, to include the starting and ending dates of any employment during that period (including his employment as a sports referee). Ask the Veteran to complete authorizations for VA to contact all identified employers. Send a VA Form 21-4192 to each identified employer and ask that it be completed and returned. 2. Obtain the Veteran’s outstanding VA treatment records from the VA Palo Alto Health Care System for the period since July 2020; and all such relevant records from any other sufficiently identified VA facility. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left and right knee disabilities. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing of the left and right knee. 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 and with repeated use over time. 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 and repeated use over time 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 may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up or following repeated use over time. The examiner should also report whether there is subluxation, lateral instability, or patellar instability involving the patellofemoral complex of either knee, and if present, provide an opinion as to its frequency and severity. The examiner should specify (a) whether any instability is due to unrepaired or failed repair of complete ligament tear, an incomplete ligament tear, a complete ligament tear, and/or a repaired complete ligament tear; and (b) whether the Veteran has been prescribed an assistive device and/or bracing for ambulation by a medical provider due to his knee instability. The examiner should also report the nature and severity of any scarring associated with the service-connected left and right knee disabilities, to include whether any scar causes any limited motion or loss of function. Each scar size (including BOTH scar length and width) and whether any scar is superficial, deep, associated with underlying soft tissue damage, nonlinear, unstable, or painful should also be noted. The examiner must provide reasons for any opinion given. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Elwood, 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.