Citation Nr: 21021261 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 20-01 507 DATE: April 12, 2021 REMANDED The appeal for a left knee disability rating, manifested by limitation of extension, greater than 20 percent prior to November 6, 2020, and a rating greater than 30 percent, thereafter, is remanded. The appeal for a rating for left knee instability greater than 10 percent from November 6, 2020, is remanded. The appeal for a separate compensable rating for left knee instability prior to November 6, 2020, is remanded. The appeal for a total disability rating due to individual unemployability (TDIU), is remanded. REASONS FOR REMAND The Veteran served honorably on active duty service from September 1951 to July 1954. He filed a timely substantive appeal (VA Form 9) in January 2020 requesting Board consideration of his left knee increased rating claim. He did not request a hearing. The appeal was previously addressed by the Board in a July 2020 remand. While on remand, the agency of original jurisdiction (AOJ) granted a separate 10 percent rating for slight instability of the left knee, effective November 6, 2020. The AOJ also recharacterized the Veteran’s left knee disability as degenerative arthritis with tendonitis/tendinosis status post meniscal tear and granted a 30 percent disability rating effective November 6, 2020. See December 2020 Rating Decision. The Board observes that the December 2020 supplemental statement of the case (SSOC) indicated a different effective date for the 30 percent rating for the left knee limitation of extension; however, the SSOC also referred the reader to the December 2020 Rating Decision for explanation of the assigned rating. Therefore, the Board has characterized the rating on appeal as that expressed in the December 2020 Rating Decision. Finally, the Board notes that the December 2020 SSOC did not address the separate rating for instability. However as the separate rating for instability was granted as part and parcel of the appeal for a higher rating for the left knee disability, and did not fully satisfy the appeal, the issue of entitlement to a separate rating prior to November 6, 2020 as well as entitlement to a higher rating for instability, remain on appeal. 1. Entitlement to a left knee disability rating greater than 20 percent prior to November 6, 2020, and greater than 30 percent thereafter. 2. Entitlement to a separate rating for left knee instability greater than 10 percent from November 6, 2020. 3. Entitlement to a separate compensable rating for left knee instability prior to November 6, 2020. The Veteran was afforded a VA examination in November 2020 and for the following reasons, clarification is required. Regarding instability, the November 2020 VA examiner specifically noted that the Veteran did not have recurrent subluxation or instability, but the section of the report regarding joint stability testing indicated the Veteran had instability of 1+ for anterior instability, posterior instability, medial instability, and lateral instability. The examiner also noted that the Veteran was at high risk for fall with unsteady gait. Based on the examination report, the AOJ granted a separate, 10 percent disability rating for instability effective the date of the November 2020 VA examination. As VA regulations have recently changed with respect to musculoskeletal conditions, and in particular instability, clarification regarding any recurrent instability is required. Additionally, the examiner noted that the Veteran uses two canes constantly. On remand, the examiner should address whether the Veteran’s canes were prescribed by a medical provider. For reference, from February 7, 2021, Diagnostic Code 5257 provides ratings for either “recurrent subluxation or instability” or “patellar instability.” With respect to recurrent subluxation or instability, from February 7, 2021, Diagnostic Code 5257 provides for a 10 percent rating for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device. A 20 percent disability rating is warranted for either: (1) a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability and a medical provider prescribes either an assistive device or bracing for ambulation; or (2) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability and a medical provider prescribes both an assistive device and bracing for ambulation. With respect to patellar instability, from February 7, 2021, Diagnostic Code 5257 provides for a 10 percent disability rating for a diagnosed condition involving the patellofemoral complex with recurrent instability (without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating may also be assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: brace, cane, or walker. A 30 percent disability rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. The November 2020 VA examination report also contained inconsistencies with respect to whether the Veteran had a history of a meniscal condition. In this regard, the November 2020 VA examiner indicated that the Veteran did not have, and had not ever had, a meniscus condition. The examiner also noted that the Veteran’s prior diagnosis of “left knee degenerative arthritis with tendonitis/tendinosis, status post meniscal tear” had progressed to left “knee instability and the deformity of lower leg deviating to lateral side due to the multiple left knee conditions as listed.” The Board notes that prior VA examination reports indicated that there may have been meniscus involvement. For example, the December 2017 VA examination report noted a left meniscal tear in 2010. Further, the December 2017 VA examination report cited a May 2010 magnetic resonance imaging (MRI) report which noted an impression of “inferior articular surface tear, post horn of medial meniscus, without displaced fragment; mild tricompartmental degenerative disease without focal osteochondral defect or loose body. There is a small effusion; extensor mechanism tendinopathy, no tear.” Additionally, although the June 2009 VA examination report noted in one section that the meniscus was not surgically absent and there was no evidence of a tear, the physical examination section noted that there was meniscus abnormality. In this regard, the June 2009 VA examiner explained that there was effusion and that there was evidence of a tear. The presence or absence of meniscal involvement is relevant as a separate rating may be warranted for meniscal involvement. In this regard, separate ratings are warranted for meniscal conditions with frequent episodes of locking, pain, and effusion, if those symptoms are not otherwise compensated under another Diagnostic Code and are distinct and separate from the symptoms compensated under another Diagnostic Code. See Lyles v. Shulkin, 29 Vet. App. 107 (2017); see also Fanning v. Brown, 4 Vet. App. 225 (1993). For these reasons, the AOJ should obtain an addendum opinion to address whether, and to what extent, the Veteran has any meniscal involvement. Finally, the examiner also noted that the Veteran’s left knee disability has caused a deformity such that the left knee is deviated laterally to 20 degrees, due to his service-connected left knee disability. On remand, the examiner is asked to describe any functional impairment or effects as a result of such deformity. This is necessary as the Veteran has raised the issue of entitlement to higher knee ratings to include an extraschedular basis. See March 2021 Informal Hearing Presentation. While on remand, any outstanding VA treatment records should also be obtained. 4. Entitlement to a TDIU. The Veteran’s appeal for a TDIU is intertwined with the outcome of the appeal for a higher rating for the left knee disability. Thus, the Board will not adjudicate the claim for TDIU at this time. See Parker v. Brown, 7 Vet. App. 116 (1994) and Harris v. Derwinski, 1 Vet. App. 180, 183. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Seek clarification from the November 2020 VA examiner, or other appropriate clinician, regarding the following areas of the November 2020 VA knee examination report regarding the severity of the Veteran’s left knee disability. Following review of the electronic claims file, the clinician is asked to address the following: (a.) Does the Veteran have recurrent subluxation or instability of the left knee? If the examiner maintains that the Veteran does not have recurrent subluxation or instability of the left knee, explain why the instability testing during the November 2020 VA examination resulted in abnormal findings. The examiner should also address the finding regarding the Veteran being a high fall risk. (b.) If recurrent subluxation or instability is found, the examiner should address whether the Veteran’s canes were prescribed by a medical provider. (c.) Does the Veteran have meniscal involvement in the left knee? If the examiner maintains that the Veteran does not have a history of meniscal tear, the examiner should explain how such conclusion was reached in light of the December 2017 VA examiner’s finding of a meniscal tear in 2010, the June 2009 VA examination report which specifically found meniscal tear and effusion, and the May 2010 MRI report which indicated an impression of “inferior articular surface tear, post horn of medial meniscus, without displaced fragment; mild tricompartmental degenerative disease without focal osteochondral defect or loose body. There is a small effusion; extensor mechanism tendinopathy, no tear.” (d.) If meniscal involvement is found, the examiner is asked to clarify whether the Veteran had any symptoms other than pain attributable to the history of a meniscal tear, at the time of the November 2020 VA examination. (e.) Address the left knee deviation deformity noted in the November 2020 VA examination report and describe any functional impairment or effects resulting from the deformity. 3. Following completion of items 1 and 2, readjudicate the claims, including the claim for TDIU. L. BARSTOW Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Donna D. Ebaugh, 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.