Citation Nr: 21021042 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 15-15 824 DATE: April 9, 2021 REMANDED The issue of entitlement to an evaluation in excess of 10 percent disabling for the period prior to January 19, 2016, not including the period of 100 percent, in excess of 30 percent disabling for the period beginning March 1, 2017, and prior to January 28, 2019, and in excess of 60 percent disabling for the period thereafter, for service-connected total arthroplasty, left knee, previously coded under DC 5257 and 5260-5010, associated degenerative arthritis associated with total arthroplasty, right knee, previously coded under DC 5260 and 5257, is remanded. The issue of entitlement to an initial evaluation in excess of 10 percent disabling for the period prior to October 1, 2014, in excess of 20 percent disabling for the period beginning October 1, 2014, and prior to January 19, 2016, and a compensable rating for the period thereafter, for service-connected left knee subluxation, is remanded. The issue of entitlement to an evaluation in excess of 10 percent disabling for the period prior to January 15, 2015, in excess of 30 percent disabling for the period beginning March 1, 2016, and prior to December 22, 2020, and in excess of 60 percent disabling for the period thereafter, for service-connected total arthroplasty, right knee, previously coded under DC 5260 and 5257, associated with degenerative arthritis, right knee, and patellofemoral syndrome, is remanded. The issue of entitlement to an initial evaluation in excess of 20 percent disabling, for the period prior to January 15, 2015, and a compensable rating for the period thereafter, for service-connected right knee meniscal tear, postoperative with instability, is remanded. The issue of entitlement to an initial compensable evaluation for the period prior to December 22, 2020, and in excess of 10 percent disabling for the period thereafter, for service-connected bilateral knee arthroplasty scars associated with total arthroplasty, right knee, previously coded under 5260 and 5257, is remanded. The issue of entitlement to an additional period of convalescence beyond November 1, 2010, for arthroscopic surgery performed on left knee on September 16, 2010, is remanded. The issue of entitlement to an initial compensable evaluation service-connected scar, left knee (underlying soft tissue damage) associated with total arthroplasty, left knee, previously coded under DC 5257 and 5260-5010, associated degenerative arthritis, is remanded. The issue of entitlement to an initial compensable evaluation for service-connected scar, right knee (underlying soft tissue damage) associated with total arthroplasty, right knee, previously coded under DC 5260 and 5257, is remanded. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1978 to March 1979. In August 2018, the Veteran testified under oath before the undersigned Veterans Law Judge at a Travel Board. A transcript of the hearing is of record. In August 2020, the Board remanded the appeal for additional development. For the reasons outlined below, the Board finds that remand is again needed. Following the Board remand, in a December 2020 rating decision, the evaluation for the service-connected total arthroplasty, right knee, previously coded under DC 5260 and 5257, associated with degenerative arthritis, right knee and patellofemoral syndrome, was increased from 30 percent disabling to 60 percent disabling, effective December 22, 2020. Similarly, the evaluation for the service-connected bilateral knee arthroplasty scars associated with total arthroplasty, right knee, previously coded under DC 5260 and 5257, was increased from a noncompensable evaluation to 10 percent disabling, effective December 22, 2020. The issues on appeal have been amended to reflect these increases. In addition to the above increases, the Board notes that the December 2020 rating decision also granted the Veteran service connection for the following: (1) scar, left knee (underlying soft tissue damage) associated with total arthroplasty, left knee, previously coded under DC 5257 and 5260-5010, associated degenerative arthritis, at a noncompensable rating, effective December 22, 2020; and (2) scar, right knee (underlying soft tissue damage) associated with total arthroplasty, right knee, previously coded under DC 5260 and 5257, at a noncompensable rating, effective December 22, 2020. These issues have also been added to the issues on appeal. 1. Entitlement to an evaluation in excess of 10 percent disabling for the period prior to January 19, 2016, not including the period of 100 percent, in excess of 30 percent disabling for the period beginning March 1, 2017, and prior to January 28, 2019, and in excess of 60 percent disabling for the period thereafter, for service-connected total arthroplasty, left knee, previously coded under DC 5257 and 5260-5010, associated degenerative arthritis associated with total arthroplasty, right knee, previously coded under DC 5260 and 5257. 2. Entitlement to an initial evaluation in excess of 10 percent disabling for the period prior to October 1, 2014, in excess of 20 percent disabling for the period beginning October 1, 2014, and prior to January 19, 2016, and a compensable rating for the period thereafter, for service-connected left knee subluxation. 3. Entitlement to an evaluation in excess of 10 percent disabling for the period prior to January 15, 2015, in excess of 30 percent disabling for the period beginning March 1, 2016, and prior to December 22, 2020, and in excess of 60 percent disabling for the period thereafter, for service-connected total arthroplasty, right knee, previously coded under DC 5260 and 5257, associated with degenerative arthritis, right knee, and patellofemoral syndrome. 4. Entitlement to an initial evaluation in excess of 20 percent disabling, for the period prior to January 15, 2015, and a compensable rating for the period thereafter, for service-connected right knee meniscal tear, postoperative with instability. 5. Entitlement to an initial compensable evaluation for the period prior to December 22, 2020, and in excess of 10 percent disabling for the period thereafter, for service-connected bilateral knee arthroplasty scars associated with total arthroplasty, right knee, previously coded under 5260 and 5257. 6. Entitlement to an additional period of convalescence beyond November 1, 2010, for arthroscopic surgery performed on left knee on September 16, 2010. 7. Entitlement to an initial compensable evaluation service-connected scar, left knee (underlying soft tissue damage) associated with total arthroplasty, left knee, previously coded under DC 5257 and 5260-5010, associated degenerative arthritis. 8. Entitlement to an initial compensable evaluation for service-connected scar, right knee (underlying soft tissue damage) associated with total arthroplasty, right knee, previously coded under DC 5260 and 5257. 9. Entitlement to a TDIU is remanded. The Board finds that a new VA examination is needed prior to final adjudication of the issues on appeal. In the August 2020 remand, the Board specifically directed that for the new VA examination “all ranges and planes of motion where pain is noted, the exact point at which pain start must be clearly noted.” (Emphasis in the original). The December 2020 VA examination indicates pain in the initial range of motion testing in both knees on flexion and extension. However, the examination report does not indicate, in terms of degrees of range of motion, where this pain begins. Upon remand, the Board asks that the point at which pain occurs be noted. See Correia v. McDonald, 28 Vet. App. 158 (2016). In addition, the Board notes the following seemingly contradictory findings regarding passive range of motion testing. The December 2020 VA examination report notes that there is “[n]o objective evidence of pain on passive range of motion testing” in either knee. However, accompanying the examination report is a Medical Opinion DBQ, which states that passive range of motion “revealed pain with movement.” The Board asks for clarification of these seemingly contradictory findings. Further, the Board notes that both the December 2020 VA examination report and the Medical Opinion DBQ note pain in both weight-bearing and nonweight-bearing in both knees. The Medical Opinion DBQ notes that a goniometer was used. However, the neither report provides range of motion testing for weight-bearing and nonweight-bearing. The Board asks that such measurements be included upon remand. In addition, the Board notes that at the August 2018 travel board hearing, the Veteran indicated the use of “two bilateral braces.” The Veteran also mentioned using a scooter at one point. However, the December 2020 VA examination report only indicates the constant use of a cane. The Board asks that this be clarified upon remand. Also, the Board notes the following scanning issue on the electronic docket. The VA examination, located on the electronic docket at June 7, 2016, entitled “Vitals Sheet,” appears to be missing part of the first page. The Board asks that a complete copy be associated with the electronic claim file upon remand. Finally, the issues regarding the scars, as well as the TDIU, are inextricably intertwined with the other issues on appeal. Accordingly, remand is appropriate for these issues. These matters are REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the issues on appeal. In addition, the Board notes the following scanning issue on the electronic docket. The VA examination, located on the electronic docket at June 7, 2016, entitled “Vitals Sheet,” appears to be missing part of the first page. The Board asks that a complete copy be associated with the electronic claim file upon remand. All efforts should be documented in the claim file. If any records could not be obtained, this should be noted in the claim file. 2. Upon completion of the above, schedule the Veteran for a VA examination to evaluate the current level of severity of his knee disabilities. The claim folder and all pertinent treatment records should be made available to the examiner for review, and review of such records should be noted in any subsequent report. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner is asked specifically to provide range of motion testing (ROM) for both knees for active motion, passive motion, weight-bearing, and nonweight-bearing. Full ROM testing also must be conducted on the opposite joint unless the opposite joint is damaged, which includes any disorder that would make the joint in question abnormal. If the opposite joint is determined to be damaged, and no ROM on testing is conducted, this must be explained in the report. In addition, for both knees the examiner must discuss pain for ROM movements on active, passive, and repetitive use testing. The examiner is asked to address the following questions: (a) Are any ROM movements painful on active, passive, and repetitive use testing? If yes, identify whether active, passive, and repetitive use. (b) If yes (there are painful movements), does the pain contribute to functional loss or additional limitation of ROM? Please further describe the functional loss or additional limitation of ROM. (c) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. In addition, for both knees the examiner must discuss pain when used in weight-bearing or in nonweight-bearing. The examiner is asked to address the following questions: (a) Is there pain when the joint is used in weight-bearing or nonweight-bearing? If yes, identify whether weight-bearing or nonweight-bearing. (b) If yes (there is pain when used in weight-bearing or nonweight-bearing), does the pain contribute to functional loss or additional limitation of ROM? Please further describe these limitations. (c) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. For all ranges and planes of motion where pain is noted, the exact point at which pain starts must be clearly noted. 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, as expressed in range of motion. To the extent possible, the examiner should identify any symptoms and functional impairments due to the knee disabilities and discuss the effect of the Veteran’s knee disabilities on any occupational functioning and activities of daily living. The examiner should state whether or not there is any neurologic disability, to include of the lower extremities, that is the result of the knee disabilities. The Board asks that the VA examiner consider the following: (a) the December 2020 VA examination report notes that there is “[n]o objective evidence of pain on passive range of motion testing” in either knee. However, accompanying the examination report is a Medical Opinion DBQ, which states that passive range of motion “revealed pain with movement.” The Board asks for clarification of these seemingly contradictory findings. (b) The December 2020 VA examination report and the Medical Opinion DBQ note pain in both weight-bearing and nonweight-bearing in both knees. The Medical Opinion DBQ notes that a goniometer was used. However, the neither report provides range of motion testing for weight-bearing and nonweight-bearing. The Board asks that such measurements be included upon remand. (c) At the August 2018 travel board hearing, the Veteran indicated the use of “two bilateral braces.” The Veteran also mentioned using a scooter at one point. However, the December 2020 VA examination report only indicates the constant use of a cane. The Board asks that this be clarified upon remand. Finally, the examiner should address the impact of the Veteran’s knee disabilities on his employability. 3. If upon completion of the above action the issues are denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Foster, 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.