Citation Nr: 21029934 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 10-42 623 DATE: May 17, 2021 REMANDED Entitlement to an evaluation rating in excess of 30 percent for the service-connected right knee disability is remanded. Entitlement to a total disability evaluation based upon individual unemployability (TDIU) rating due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from February 1977 to March 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2014, the Board issued a decision which, in pertinent part, denied the Veteran's claim of entitlement to an evaluation in excess of 30 percent for his right knee disability. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In June 2015, the Court granted a Joint Motion for Partial Remand (JMPR), which set aside this portion of the January 2014 Board decision and remanded the matter for further adjudication consistent with the JMPR. In February 2016, March 2017 and last in September 2020, the Board remanded this matter for additional development. The Board notes that, given that clear and unmistakable error was identified in the October 2019 rating decision, thereby restoring the Veteran's 30 percent rating for the right knee disability since March 26, 2009, and restoring the special monthly compensation at the housebound rate since October 1, 2014, for his combined compensable rating disabilities other than posttraumatic stress disorder (PTSD) , the issue of restoration of the rating and the award is moot. 38 C.F.R. § 3.105. See October 25, 2019 Rating Decision. Hence, the issues before the Board are entitlement to an increased rating in excess of 30 percent for the right knee disability since March 26, 2009 and entitlement to a TDIU rating. For the reasons noted below, the Board finds that remand is necessary to afford the Veteran full consideration of the benefit sought on appeal in accordance with the June 2015 JMPR. 1. Entitlement to an evaluation rating in excess of 30 percent for the service-connected right knee disability is remanded. In this case, the Veteran's residuals of right knee injury with degenerative joint disease is rated under 38 C.F.R. § 4.71a Diagnostic Code (DC) 5003-5262, impairment of tibia and fibula, at an evaluation of 30 percent disabling since March 26, 2009. In the June 2015 JMPR, the Parties noted that it is unclear from the record whether the Veteran has any impairment of the tibia or fibula. The Parties further determined that although the Board noted that the Veteran suffers from occasional instability, the Board failed to explain why the hybrid DC of 5003-5262 was used to rate the right knee disability. According to the JMPR, the Board also failed to adequately explain why the DC rating changed from DC 5257 to DC 5003-5262. Further, the Veteran contends that he is entitled to a separate rating for his arthritis of the right knee disability and asserts that Mitchell v. Shinseki, 25 Vet. App. 32 (2011) explains that DC 5003 has three parts that each address how to rate arthritic pain. He asserts that VA has been erroneously evaluating him under DC 5003-5262 and neither of the rating requirements address limitation of motion which must be addressed under DC 5003. He further contends that the 30 percent rating is proper evaluation of his residuals separate from his arthritis, but he is also entitled to ratings under 38 C.F.R. § 4.71a, DCs 5260 and 5261 because there is both painful motion on flexion and extension. The Board further notes that the schedular rating for a disability regarding the knee and leg ranges from 0 percent to 60 percent rating. 38 C.F.R. § 4.71a, DCs 5256 - 5263. Thus, at the outset, the Board notes that in accordance with the June 2015 JMPR and to address the Veteran's contentions, in this case, it is paramount that changing the Veteran's DC rating be more advantageous than the current rating and that adding a separate rating(s) is warranted as the stabilization of disability evaluations apply to ratings which have continued for long periods at the same level (5 years or more). 38 C.F.R. § 3.344. However, the assignment of a particular DC is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as medical history, diagnosis, and demonstrated symptomatology. Any change in DC by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Here, it is unclear if the Veteran's most recent December 2020 VA examination of his right knee adequately considers or reflects all of the Veteran's symptomatology and lay statements. Specifically, the examination report does not reflect that the examiner reviewed or the performed recent imaging/x-ray studies, and does not indicate that the most recent, April 2015 x-ray of the right knee was reviewed. Moreover, the Veteran's VA treatment records reflect the Veteran's reports of continuously worsening pain and impairment of his right knee, which is not adequately considered in the most recent examination report. As such, based on the current evidence of record, the Board is unable to determine whether changing the Veteran's DC would result in a more advantageous rating and/or separate ratings, and to the extent of which the percentage, if applicable, is warranted. VA has a duty, when appropriate, to conduct a thorough and contemporaneous examination of the Veteran that considers records of prior examinations and treatment. See Green v. Derwinski, 1 Vet. App. 121 (1991). As such, the examination is inadequate as it does not include the most recent x-ray and thus, does not accurately describe the Veteran's current severity level of the right knee disability. Hence, the Board finds that remand is necessary to afford the Veteran full consideration of the benefit sought on appeal. 2. Entitlement to a TDIU rating due to service-connected disabilities is remanded. The Board finds that the issue of a TDIU rating is inextricably intertwined with the claim for an increased rating for the right knee disability and remand is of the issue is therefore appropriate. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain any updated VA or private treatment records and associate those records with the claims file. 2. After the above development is complete, schedule the Veteran for a VA examination to determine the current severity level of his service-right knee disability. All necessary testing, including x-ray/ MRI of the right knee, should be scheduled. The examiner must test for pain and record the ROM for the right knee in active motion, passive motion, weight-bearing, and non-weightbearing conditions and, if possible, with the range of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, or is not medically appropriate, then the examiner should provide a clear explanation as to why the testing was not conducted. The examiner must also express an opinion as to whether there would be additional functional impairment on repeated use over time or during flare ups. The examiner should assess the additional functional impairment on repeated use or during flare ups in terms of the degree of additional range-of-motion loss, if possible. If the Veteran indicates that he is not currently experiencing a flare up at the time of the examination, the examiner should still estimate any additional functional loss during flare ups or on repeated use, based on the Veteran's description of the severity, frequency, duration, and/or functional loss manifestations during such episodes. In providing the requested opinions, the examiner must consider and discuss the complete medical history and the Veteran's lay statements regarding his right knee, since March 26, 2008, including documented x-ray evidence of arthritis of the right knee and lay statements of worsening pain in his right knee and limited motion. If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration given. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. A complete rationale for all opinions is required. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Alli, 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.