Citation Nr: 21022734 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 16-11 505 DATE: April 19, 2021 REMANDED Entitlement to a rating in excess of 10 percent for the service-connected degenerative changes of the right knee with a small arthroscopic scar is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) on an extraschedular basis is remanded. REASONS FOR REMAND The Veteran had active service from September 1973 to January 1975, with subsequent periods of active duty for training (ACDUTRA). In November 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). In April 2020, the Board of Veterans’ Appeals (Board) remanded this appeal for further evidentiary development. Entitlement to a rating in excess of 10 percent for the service-connected degenerative changes of the right knee with a small arthroscopic scar At the November 2019 hearing, the Veteran testified that he experienced instability in his right knee and wore a brace to help alleviate these symptoms. He also submitted a private opinion in December 2019 from Dr. S.B., MD, who discussed how the Veteran’s right knee instability had not been properly documented or discussed in VA examinations. This physician found evidence in the file reflecting instability of the Veteran’s right knee that would inevitably cause disturbances. Pursuant to the April 2020 Board Remand, the Veteran underwent a VA knee and lower leg conditions examination in November 2020. The examiner, contrary to the Veteran’s hearing testimony, noted that the Veteran did not use any assistive devices, including a knee brace, to assist with locomotion. She also stated that the Veteran did not have right knee instability in the “Diagnoses Associated with the Claimed Condition” section of the examination report. Further, she concluded that the Veteran did not have a history of lateral instability. In light of the Veteran’s contentions of experiencing right knee instability, and in light of the private opinion from Dr. S.B. supporting those contentions, the Board cannot decide his increased rating claim at this time without another examination that addresses the indications of right knee instability in the record. Further, although the 2016 VA knee and lower leg conditions examiner noted that the Veteran had at that time, or had a history of, a right knee meniscal tear, the 2020 VA examiner stated that the Veteran did not have, or never have had, a meniscal condition—but then noted that the Veteran had previously undergone a meniscectomy or arthroscopy surgery in the past. Clarification is also needed regarding the Veteran’s current meniscal condition or history thereof, including whether he has or has had dislocated meniscus or symptomatic removal of meniscus at any time during the period on appeal. Entitlement to a TDIU on an extraschedular basis When a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities but fails to meet the schedular requirements for TDIU set forth in 38 C.F.R. § 4.16(a), the case may be referred to VA’s Director of Compensation Service for consideration of TDIU on an extraschedular basis. Here, evidence suggests that the Veteran may have been unable to obtain or maintain substantially gainful employment as a result of his service-connected disabilities outside periods of convalescence. The Board notes that the Veteran has not met the schedular criteria for TDIU at any time during the appeal period outside of the convalescent periods. However, the record reflects that the Veteran had previously been employed in electrical work until July 2011. He is service-connected for a right-hand disability, and is right hand dominant. VA examiners have repeatedly stated that, after undergoing surgery in January 2012, the Veteran’s right hand was fused in at least one joint, resulting in permanent decreased grip strength in the right hand. The Board finds that there is competent medical evidence supporting a TDIU in this case, given the Veteran’s employment and training background in a field requiring him to grip small instruments with his right hand. Because the Board is precluded from awarding a benefit of extraschedular TDIU in the first instance, the case must be referred to VA’s Director of Compensation Service for consideration. Accordingly, these matters are remanded for the following actions: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right knee disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria, specifically, Diagnostic Codes 5260 and 5261 for limitation of motion; 5257 for instability; 5258 for dislocated semilunar cartilage (meniscus); and 5259 for symptomatic removal of semilunar cartilage, in light of the Veteran’s contentions. In doing so, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. 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 should 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 after 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). Finally, the examiner is advised that the criteria of Diagnostic Code 5257 were amended, effective February 7, 2021. The examiner must provide a complete examination of the disability in accordance with both the old and new regulations. The new criteria are: (a.) Does the Veteran present with recurrent subluxation or lateral instability, as follows: a. Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation; or b. One of the following: i. Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or ii. Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation); or iii. 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 (e.g., cane(s), crutch(es), walker) or bracing for ambulation. (b.) Does the Veteran present with patellar instability, as follows: a. 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; or b. 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: A brace, cane, or walker; or c. A diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. In addressing the Veteran’s right knee instability, the examiner should consider his Board testimony about needing a brace for his right knee due to the instability symptoms he has experienced. The examiner should also address the December 2019 opinion by Dr. S.B. that there are findings in the record which show right knee instability. If the examiner finds that the Veteran’s right knee meniscal status or surgical history is other than what prior VA examiners have found, the examiner should provide a detailed explanation as to whether there has been a change in the condition during the period on appeal, or whether any prior findings were erroneous. A rationale for all requested opinions shall be provided. 2. Refer the TDIU claim to VA’s Director of Compensation Service for consideration in accordance with 38 C.F.R. § 4.16 (b) as to whether the Veteran was unable to obtain or maintain substantially gainful employment due to his service-connected disabilities. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Davidoski, 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.