Citation Nr: 21023916 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 08-16 176 DATE: April 21, 2021 REMANDED Entitlement to a rating higher than 10 percent for right knee degenerative changes status post reconstruction (right knee limitation of motion) is remanded. Entitlement to a rating higher than 10 percent for right knee instability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from July 1982 to August 1992. In March 2012, the Board of Veterans’ Appeal (Board), in pertinent part, denied a rating higher than 10 percent for right knee limitation of motion prior to May 15, 2008, and remanded the claim for a higher rating thereafter as well as denied an increased ratings for the bilateral foot disorders as well as service connection for bilateral ankle disorders. The Veteran appealed to the Court of Appeals for Veterans Claims (Court), and in a December 2013 memorandum decision, the Court vacated and remanded the Board denial of increased ratings for the right knee limitation of motion and bilateral foot disorders as well as service connection for bilateral ankle disorders. In July 2014 and March 2016, the Board remanded the appeal. In a January 2017 rating decision, the regional office (RO) granted service connection for atrophy of the Veteran’s right lower extremity (previously part of the Veteran’s service-connected right knee disability) and for bilateral pes planus(with which the RO included the Veteran’s service-connected hallux valgus and hammertoes). In a February 2017rating decision, the RO granted service connection for the Veteran’s left ankle disability. Therefore, these issues are no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). In September 2017 the Board, among other things, denied service connection for a right ankle disability, granted separate compensable ratings for the bilateral foot disorders (i.e., left and right hallux valgus), and remanded the claim for an increased rating for right knee limitation of motion. In a June 2019 rating decision, the agency of original jurisdiction (AOJ) granted a separate 10 percent rating for instability of the right knee, effective April 19, 2012. The Veteran has not filed an appeal with respect to the propriety of the assigned rating or effective date for his right knee instability. However, although the action was characterized as granting “service connection” for instability, the issue is part and parcel of his right knee rating claim on appeal. The Board recognizes that entitlement to a total disability rating based on unemployability (TDIU), is part and parcel of an increased rating claim when raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). In July 2014 the Board determined that a claim for TDIU had been raised by the record and remanded the matter for additional development. In a November 2016 statement, however, the Veteran specifically withdrew his claim for TDIU. The Veteran has not re-raised the issue of entitlement to TDIU following the November 2016 withdrawal of the claim. As such, the Board concludes that the foregoing issue is not in appellate status. Given the above, the Board finds that the only issues remaining on appeal are the Veteran’s claims for increased ratings for right knee limitation of motion and instability. Beyond the above, it is valuable to note that the Veteran has already been found to be 100 percent disabled by VA and is receiving a 100 percent disability. Therefore, after consultation with his representative, while this issue on appeal is in Remand status, the Veteran may wish to consider withdrawing, in writing, this issue. Entitlement to higher disability ratings for the right knee disabilities are remanded As to the remaining issues on appeal, while the appeal was in Remand status the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, including the knee, were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). Also see 85 Fed Reg 85523 (Dec. 29, 2020); 86 Fed Reg 8142 (Feb. 4, 2021). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. In this regard, the Court has held that when the Board addresses in its decision a question that has not yet been addressed by the RO, the Board must consider whether the veteran has been given adequate notice of the need to submit evidence or argument on the question, whether he has been given an adequate opportunity to actually submit such evidence and argument, and whether the statement of the case provided the veteran fulfills the regulatory requirements. See 38 C.F.R. § 19.29. If not, the matter must be remanded to the RO to avoid prejudice to the veteran. Bernard v. Brown, 4 Vet. App. 384, 393 (1993); 38 C.F.R. § 19.9. Therefore, while the Board regrets the additional delay, it nonetheless finds that it has no other option but to again Remand the appeal to provide the Veteran notice of these new rating criteria. See 38 C.F.R. § 19.31 (a SSOC will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued). In this regard, when again adjudicating the claim the RO should be mindful of the fact that if a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, when again adjudicating the Veteran’s claim it should do so under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021, with the criteria that is more favorable to the Veteran being applied. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Also when again adjudicating the claim, the RO should be mindful of the fact that the Court in the December 2013 decision specifically directed VA to consider if the Veteran was entitled to separate compensable ratings for instability under Diagnostic Code 5257 and limitation of motion of motion under Diagnostic Code 5260 since August 11, 1992, and the June 2019 rating decision only granted a separate 10 percent rating for instability effective from April 19, 2012. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994); VAOPGCPREC 23-97; Also see Fenderson v. West, 12 Vet. App. 119, 125-26 (1999); AB v. Brown, 6 Vet. App. 35 (1993) (in an appeal in which the veteran expresses general disagreement with the assignment of a particular rating and requests an increase, the RO and the Board are required to construe the appeal as an appeal for the maximum benefit allowable by law or regulation); 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 joint motion for remand or explain why the terms will not be fulfilled). Likewise, the Board finds that when again adjudicating the claim the RO should be mindful of the fact that the Veteran’s service connected knee disability is also potentially entitled to separate rating for lost flexion under Diagnostic Code 5260 and lost extension under Diagnostic Code 5261. See VAOPGCPREC 9-2004. While the appeal is in Remand status any outstanding VA and private treatment records should also be obtained and associated with the record. See 38 U.S.C. § 5103A(b). The appeal is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records (if any). 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records (if any). If possible, the Veteran himself should submit and new pertinent evidence the Board/VA does not have (if any). This would include any recent VA treatment. Any help with the above would be appreciated. (Continued on the next page)   3. In order to comply with the Court decision, after undertaking the above development, the RO should issue the Veteran a SSOC that, among other things, adjudicates and provides the appellant with notice of the new musculoskeletal Diagnostic Codes for rating the knee as well as considers whether the criteria for separate knee ratings for knee arthritis and instability as well as lost knee flexion and extension have been met since August 11, 1992, even though the June 2019 rating decision only granted a separate 10 percent rating for instability effective from April 19, 2012. See 85 Fed Reg 76453; 85 Fed Reg 85523; 86 Fed Reg 8142; Also see Esteban, supra; VAOPGCPREC 9-2004; VAOPGCPREC 23-97; Forcier, supra. NEIL T. WERNER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Azizi, T. 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.