Citation Nr: 21026319 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 16-35 682 DATE: April 30, 2021 ORDER Entitlement to a total disability rating for individual unemployability (TDIU) due to service-connected disabilities is denied. REMANDED Entitlement to a rating in excess of 20 percent for moderate arthritis and patellofemoral syndrome, right knee to include on an extra-schedular basis is remanded. FINDING OF FACT The claim for TDIU is moot for the entire period on appeal. CONCLUSION OF LAW The claim for TDIU is made moot by the assignment of a 100 percent rating for granulosa cell tumor as of February 10, 2010. 38 U.S.C. §§ 7104, 7105(d)(5). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on August 1978 to June 1991. In July 2018, the Veteran testified at a video conference hearing (hearing) before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. This matter was previously remanded by the Board of Veterans’ Appeals (BVA) in September 2019 for additional development. It now returns for further appellate review. 1. Entitlement to a TDIU The Veteran contends that she in unemployable due to her service-connected disabilities. See March 2010 VA Form 21-4138, Statement in Support of Claim. Discussion A claim for TDIU is considered part of an increased rating claim when the issue of unemployability is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran’s claim for entitlement to a TDIU dates back to February 10, 2010 as part of her increased rating claim for her service-connected right knee disability. See February 2010 VA Form 21-4138, Statement in Support of Claim. However, the claim of entitlement to TDIU has been made moot by the award of a 100 percent schedular rating for granulosa cell tumor for the entire period on appeal. Bradley v. Peake, 22 Vet. App. 280 (2008). A 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443 (1994); Swan v. Derwinski, 1 Vet. App. 20 (1990). Thus, if VA has found a Veteran to be totally disabled as a result of a particular service-connected disability, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. Herlehy v. Principi, 15 Vet. App. 33 (2001) (request for TDIU moot where 100 percent schedular rating was awarded for the same period). As the Veteran is now in receipt of a 100 percent rating, effective February 10, 2010, based on the service-connected granulosa cell tumor disability since February 10, 2010, there is no time during the appeals period where the schedular rating is less than total, as required for consideration of the assignment of TDIU. 38 C.F.R. § 4.16. The Board is cognizant of the fact that the receipt of a 100 percent schedular rating for a service-connected disability or disabilities does not necessarily moot the issue of entitlement to a TDIU because a TDIU rating may still form the basis for assignment of special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s). Bradley v. Peake, 22 Vet. App. 280 (2008). VA’s duty to maximize a claimant’s benefits includes consideration of whether disabilities establish entitlement to SMC under 38 U.S.C. § 1114. Buie v. Shinseki, 24 Vet. App. 242 (2011). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. Bradley v. Peake, 22 Vet. App. 280 (2008). However, in this case, the Veteran was assigned a 100 percent rating for granulosa cell tumor and granted SMC at the housebound rate because she had additional service-connected disabilities independently ratable as greater than 60 percent disabling when combined since February 10, 2010. 38 U.S.C. § 1114(s). See June 2020 Rating Decision. Therefore, the Veteran’s benefits have maximized for the entire period on appeal. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). The assignment of a 100 percent rating for service-connected granulosa cell tumor effective February 10, 2010, makes the issue of entitlement to TDIU moot as of that date. Accordingly, the Board finds that the issue of entitlement to TDIU is moot and the claim for TDIU is denied. Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2010). REASONS FOR REMAND 1. Right knee moderate arthritis and patellofemoral syndrome A remand is necessary because the Board is unable to properly rate her service-connected right knee disability based on the current evidence of record for the reasons discussed below. The Board remanded the claim for increased rating in September 2019 in order to obtain a new VA examination that complied with the holdings of Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). See September 2019 Board Decision. Consequently, the Veteran was provided a VA examination in December 2019. See December 2019 VA Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ). However, the examiner indicated that she was unable to test the Veteran’s range of motion (ROM) due to the Veteran’s reports of severe knee pain. Id. Additionally, the examiner did not provide estimated ROM measurements, nor provide a detailed explanation why ROM tests could not be completed aside from the Veteran’s reports of pain. In short, because the examiner failed to provide the specific or estimated results of active ROM, passive ROM, weightbearing ROM, and non-weightbearing ROM or detailed explanation for why ROM testing could not be conducted, the Board finds a new VA examination is necessary. The Board also finds a remand is necessary in light of the new regulations for the evaluation of musculoskeletal disabilities effective February 7, 2021. See 85 Fed. Reg. 76,453-76,469 (November 30, 2020). Notably, the new regulations represent significant changes to 38 C.F.R. § 4.71a, Diagnostic Code 5257, pertaining to the criteria for evaluating recurrent subluxation and instability of the knee. Because the amendments have a specified effective date without provision for retroactive application, they may not be applied before the effective date. As of that effective date, the Board must apply whichever version of the rating criteria is more favorable to the Veteran. 38 U.S.C. § 5110(g); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Here, the Veteran’s right knee conditions may warrant a higher rating based on the new regulations. Specifically, higher ratings for knee instability require a prescription of an assistive device and/or diagnosis of patellar instability. Prior VA examinations of record do not indicate these new criteria. Therefore, based on these new regulations, the Veteran should be afforded a new VA examination that addresses these new criteria. The Board also notes that the record is unclear whether the Veteran’s right knee disability involves a meniscal condition. In this regard, the Board notes that a January 2019 magnetic resonance imaging (MRI) of the Veteran’s right knee indicated the Veteran had a small oblique tear in the periphery of the anterior horn of the lateral meniscus. See January 2019 VA MRI Report in CAPRI received November 2019. However, the December 2019 VA examiner noted review of the January 2019 MRI report but concluded that the Veteran did not have a meniscal condition. 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). Thus, the VA examiner should determine whether the Veteran has right knee involves any meniscal condition. Finally, the Board notes that the United States Court of Appeals for of Veterans Claims (Court) recently ruled that in assessing musculoskeletal disabilities that the Board must address whether ankylosis can be met by symptoms representing the functional equivalent of ankylosis during a flare. Chavis v. McDonough, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660 at * 2 (Apr. 16, 2021). As such, the VA examiner must assess whether the Veteran’s symptoms resulted in the functional equivalent of ankylosis during a flare-up. Based on the foregoing, the Board finds that a new examination is required to clarify the extent of the Veteran’s right knee instability, to include whether she has been prescribed a knee brace or other assistive devices, has a meniscal tear, and provides the necessary ROM test results. The RO should also attempt to obtain a retrospective medical opinion including obtaining estimated ROMs. See Chotta v. Peake, 22 Vet. App. 80 (2008). The Board notes the claims file reflects that the Veteran has been receiving treatment from the Cleveland VA Medical Center (VAMC) and Salt Lake City VAMC, to include the Canton Community Based Outpatient Clinic (CBOC), as well as Akron CBOC and that records dated through June 2020 are associated with the file; however, more recent records may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). The matters are REMANDED for the following action: 1. Obtain the Veteran’s comprehensive VA treatment records for the period from July 2020 to the present, to include from VA medical centers, clinics, counseling centers, hospitals, and outpatient treatment centers.  See 38 C.F.R. § 3.159(c)(3) (2020).  The Board observes that the Veteran has been treated at various VA facilities, to include Cleveland VAMC, Akron VAMC, Akron CBOC, and Canton CBOC. 2. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination. 3. Schedule the Veteran for an examination of the current severity for her service-connected right knee disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing (if applicable). 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. The examiner should identify any symptoms and functional impairments due to the Veteran’s condition and discuss the effect of the Veteran’s condition on any occupational functioning and activities of daily living. • THE BOARD EMPHASIZES THAT IF THE VETERAN IS UNABLE TO PARTICIPATE IN ROM TESTS, THE VA EXAMINER MUST PROVIDE AN ESTIMATE REGARDING THE VETERAN’S RIGHT KNEE ROM AND A DETAILED EXPLANATION FOR WHY S/HE WAS UNABLE TO TEST THE VETERAN’S ROM. 4. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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). 5. The examiner should address whether the Veteran is prescribed an assistive device or is diagnosed with patellar instability. 6. If ankylosis is not found, the examiner should opine as to whether the Veteran’s range of motion is so diminished as a result of pain so that it is the functional equivalent of ankylosis and whether the Veteran’s use of a brace is the functional equivalent of ankylosis with respect to her ability to perform the functions associated with her right knee. 7. THE EXAMINER SHOULD ALSO REVIEW THE AUGUST 2010, OCTOBER 2015, AND MARCH 2019 VA EXAMINATIONS, AND PROVIDE A RETROSPECTIVE OPINION AS TO THE VETERAN’S ACTIVE MOTION, PASSIVE MOTION, AND PAIN WITH WEIGHT-BEARING AND WITHOUT WEIGHT-BEARING (PER CORREIA) AND THE VETERAN’S FLARE-UPS BASED ON THE AFOREMENTIONED (PER SHARP). IF UNABLE TO PROVIDE THIS RETROSPECTIVE TESTING, THE EXAMINER SHOULD STATE WHY AND PROVIDE A REASONED EXPLANATION FOR THE DETERMINATION. 8. The examiner is specifically asked to set forth the extent of any functional loss due to weakened movement, excess fatigability, incoordination, pain on use, swelling, deformity, or atrophy of disuse. 9. Does the Veteran have meniscal involvement in the right knee? (a.) 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 January 2019 MRI report indicating a small oblique tear in the periphery of the anterior horn of the lateral meniscus. (b.) If meniscal involvement is found, the examiner is asked to describe the Veteran’s symptoms attributable to meniscal condition. • A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 10. THE RO MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Lilly, 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.