Citation Nr: 21040689 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 11-27 275 DATE: July 6, 2021 REMANDED Entitlement to an increased rating for a service-connected thoracolumbar spine disability is remanded. Entitlement to a rating an increased rating for a service-connected left knee disability is remanded. REASONS FOR REMAND The Veteran had active military service from August 1982 to December 1982, March 1986 to March 1992, May 1998 to September 1999, September 2006 to June 2007, and September 2008 to January 2009. He had a verified period of active duty for training from August 1982 to December 1982 and additional periods of inactive duty for training with the Army National Guard. The Board of Veterans' Appeals (the Board) most recently remanded the Veteran's appeal in November 2020. In its remand directives, the Board instructed the Agency of Original Jurisdiction (AOJ) to afford the Veteran new VA examinations for his service-connected thoracolumbar spine disability and his service-connected left knee disability. The Veteran received those examinations on December 10, 2020. In a December 2020 rating decision, the AOJ assigned an increased rating of 20 percent for the Veteran's service-connected thoracolumbar spine disability effective December 10, 2020, assigned separate 20 percent ratings for bilateral radiculopathy secondary to the service-connected thoracolumbar spine disability effective December 10, 2020, and assigned a 10 percent rating for instability in the left knee from December 10, 2020. The AOJ also issued a December 2020 supplemental statement of the case (SSOC) that addressed the issues of a rating in excess of 10 percent for his service-connected left knee based on his range of motion, a rating in excess of 10 percent prior to December 10, 2020 for his thoracolumbar spine disability, and a rating in excess of 20 percent from December 10, 2020 for his service-connected thoracolumbar spine disability. On January 22, 2021, VA received the Veteran's VA Form 20-0996, Decision Review Request: Higher-Level Review seeking a rating in excess of 10 percent prior to December 10, 2020 for his thoracolumbar spine disability, ratings for bilateral radiculopathy affecting both lower extremities prior to December 10, 2020, and a rating for instability in the left knee prior to December 10, 2020. In January 2021 correspondence, the AOJ informed the Veteran that it could not process his Higher-Level Review request for the issue of a rating in excess of 10 percent prior to December 10, 2020 for his service-connected thoracolumbar spine disability because of his pending legacy appeal. The AOJ noted that the Veteran did not indicate in Box 15 of his VA Form 20-0996 that he wished to withdraw this issue from his appeal pending in the legacy appeal process. That issue is once again before the Board along with the Veteran's entitlement to a rating in excess of 10 percent for his service-connected left knee disability. 1. Entitlement to Increased Ratings for Service-Connected Left Knee Disability In a February 2021 rating decision, the AOJ concluded that a duty to assist error had been committed in the December 2020 rating decision, and the AOJ has undertaken development to correct that error. With respect to the Veteran's claim for an increased rating for a left knee disability, the AOJ concluded that the December 2020 VA examination did not include responses to the questions posed by the Board in its November 2020 remand directives. Thus, the AOJ requested a new VA addendum opinion from the examiner responsible for the December 2020 VA examination. The examiner proffered the requested addendum opinion in March 2021. The Veteran also received a VA examination for his knees on May 7, 2021. On April 27, 2021, VA advised the Veteran that additional evidence had been received with regard to his claim for an increased rating for his knees. Reference was made to the March 2021 addendum opinion. The responded that he wished to waive AOJ consideration of that evidence. No waiver has been received with respect to the May 2021 VA examination. For that reason, and to preserve due process, the Board concludes that the Veteran's claim for an increased rating for his service-connected left knee disability must be remanded. VA amended the ratings criteria for service-connected knee disabilities effective February 7, 2021. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30,2020 ). Prior to the amendments, Diagnostic Code 5257 generally applied to lateral instability and subluxation without specifying the cause of either instability of subluxation. The amendments, however, now specify that a rating under Diagnostic Code 5257 be assigned for pathology of the ligaments in the knee. Following the revisions, Diagnostic Code 5257 now contains ratings criteria specific to the patellofemoral complex, defined as quadriceps tendon, the patella, and the patellar tendon. 38 C.F.R. § 4.71a, Diagnostic Code 5257, Note (1). The December 2020 VA examination and March 2021 VA examination and addendum opinion include diagnoses for left knee patellofemoral syndrome, left knee chondromalacia with degenerative arthritis, and Baker's cyst in the left knee with locking and effusion. The examiner noted further that the Veteran had mucoid degeneration of medial meniscus without frank meniscus tear in his left knee. Given the Veteran's many diagnoses in his left knee and the changes in the ratings criteria applicable to service-connected knee disabilities as of February 7, 2021, the Board concludes that the Veteran's claim should be remanded pending the adjudication of the Veteran's request for higher-level review. The AOJ has not yet issued a rating decision and may assign ratings under diagnostic codes other than Diagnostic Code 5257. The AOJ may also assign ratings under Diagnostic Code 5257 for symptoms contemplated by other Diagnostic Codes, raising the potential for duplicative compensation for the same symptomology in violation of 38 C.F.R. § 4.14 if the Board adjudicated the Veteran's claim while his request for higher-level review remains pending. Indeed, the questions posed in the Board's November 2020 remand directives address issues of locking and giving way, which touch on the Veteran's potential entitlement to a rating under 38 C.F.R. § 4.71 either Diagnostic Code 5258 or Diagnostic Code 5259. In light of the foregoing, the Board concludes that the current appeal is inextricably intertwined with the higher-level review currently before the AOJ. In this circumstance, the Board must remand the Veteran's claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). 2. Entitlement to an Increased Rating for a Service-Connected Thoracolumbar Spine Disability The Board similarly concludes that it cannot adjudicate the Veteran's claim for a rating in excess of 10 percent prior to December 10, 2020 and in excess of 20 percent after December 10, 2020 for his service-connected thoracolumbar spine disability claim as a result of development undertaken by the AOJ following the Veteran's request for higher-level review. The AOJ directed that the Veteran be afforded a new VA examination to assess the current severity of his service-connected radiculopathy. The Veteran received that VA examination in March 2021 and a follow-up examination in May 2021. The relevant findings have not been considered in the context of the present appeal and the Veteran has not waived AOJ consideration of that evidence. Further, in June 2021, the AOJ requested a new VA examination for the Veteran's peripheral nerve disorders to ensure that the correct disability benefits questionnaire is used for the examination of any peripheral nerve disorders. This development implicates the rating for his service-connected thoracolumbar spine disability. Specifically, the March 2021 and May 2021 peripheral nerve examinations address the severity of the Veteran's low back symptoms. For instance, the March 2021 VA examination discusses the Veteran's back pain. The VA examination ordered in June 2021 may disclose additional evidence regarding the severity of the Veteran's symptoms and any functional loss due to his service-connected thoracolumbar spine disability and other associated neurological abnormalities. Because the development undertaken by the AOJ may include evidence regarding the severity of his service-connected thoracolumbar spine disability, the Board cannot adjudicate the Veteran's claim pending the AOJ's adjudication of his claimed for increased rating for examination ordered by the AOJ. Thus, the issues are inextricably intertwined, and his claim for increased rating for his service-connected thoracolumbar spine disability must be remanded to the AOJ. See id. The matters are REMANDED for the following action: 1. Following the adjudication of the Veteran's request for higher-level review regarding his entitlement for a rating in excess of 10 percent for service-connected left knee disability, adjudicate the Veteran's entitlement to an increased rating for his service-connected left knee disability under other potentially applicable diagnostic codes. 2. Following the completion of the VA examination for the Veteran's service-connected peripheral nerve disorders, which was ordered/requested in June 2021, adjudicate the Veteran's entitlement to a rating in excess of 10 percent prior to December 10, 2020 and in excess of 20 percent after December 10, 2020. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Douglas M. Humphrey, 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.