Citation Nr: 21041552 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 17-53 838 DATE: July 9, 2021 REMANDED Entitlement to a disability rating greater than 10 percent for service-connected status post medial meniscectomy of the left knee is remanded. Entitlement to a disability rating greater than 10 percent for service-connected arthritis of the left knee, prior to January 22, 2021, and greater than 30 percent, thereafter, is remanded. REASONS FOR REMAND The Veteran had active service from January 1981 to January 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision of the RO that discontinued a separate 10 percent disability rating for arthritis of the left knee under 38 C.F.R. § 4.71a, Diagnostic Code 5003-5259, effective as of April 1, 2017; and, combined the status post left medial meniscectomy and left knee arthritis into a single 10 percent rating previously two separate ratings were assigned. The Veteran disagreed with this determination. In November 2019, the Veteran testified at a Board hearing over which the undersigned presided. A transcript of that hearing is of record. In a January 2020 decision, the Board determined that restoration of the separate 10 percent disability rating for arthritis of the left knee was warranted, and remanded the issues of entitlement to a disability rating greater than 10 percent for service-connected left knee status post medial meniscectomy for additional development. It is now returned to the Board. During the pendency of this appeal, by rating action dated in March 2021, the RO, in pertinent part, determined that the service-connected arthritis of the left knee warranted a 30 percent disability rating, effective as of January 2021. Absent a waiver, a claimant seeking a disability rating greater than assigned will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and that a claim remains in controversy where less than the maximum available benefits are awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran has not withdrawn the appeal as to the issue of a disability rating greater than assigned, therefore, the issue remains in appellate status. 1. Entitlement to a disability rating greater than 10 percent for service-connected status post medial meniscectomy of the left knee. 2. Entitlement to a disability rating greater than 10 percent for service-connected arthritis of the left knee, prior to January 22, 2021, and greater than 30 percent, thereafter. This matter was remanded in January 2020 so that the Veteran could be afforded an updated VA examination of his service-connected left knee disabilities. Thereafter, in October 2020 and January 2021, the Veteran underwent VA examinations of the left knee. Following the October 2020 VA examination, a Supplemental Statement of the Case was issued that considered additional evidence added to the record, but not the findings of the October 2020 VA examination. Thereafter, following the January 2021 VA examination, the RO issued a rating decision in March 2021 that considered the examination findings as to the issue of an increased disability rating for the service-connected left knee arthritis. However, the RO did not readjudicate the issue of an increased disability rating for the service-connected status post medial meniscectomy of the left knee. Pursuant to 38 C.F.R. § 20.1304(c), any pertinent evidence submitted to the Board by the agency of original jurisdiction after the certification of appeal must be referred to the agency of original jurisdiction for review, unless such procedural right is waived by the Veteran or the Veteran's representative, or unless the Board determines that the benefits to which the evidence relates may be fully allowed on appeal without such referral. See also 38 C.F.R. §§ 19.31, 19.37; 38 U.S.C. § 7105 (d). Additional pertinent evidence has been associated with the record, but the RO did not readjudicate the issue on appeal. In the March 2021 rating decision, the RO specifically indicated that it was not addressing the left knee medial meniscectomy issue as it was on appeal. There is no automatic waiver for evidence obtained by VA, and the RO has not issued a Supplemental Statement of the Case indicating review of the new evidence relevant to the Veteran's claim. As such, the Board finds that a remand is required, and the agency of original jurisdiction must readjudicate the claim and issue a Supplemental Statement of the Case. Additionally, on February 7, 2021, during the course of this appeal, revisions to the Schedule for Rating Disabilities that addresses the musculoskeletal system went into effect. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). The United States Supreme Court has held that statutes generally may not be construed to have retroactive effect unless their language requires that result. See Landgraf v. USI Film Products, 511 U.S. 244 (1994). In Karnas v. Derwinski, 1 Vet. App. 308 (1991), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the more favorable regulations should apply to the Veteran. However, the Federal Circuit overruled Karnas to the extent that it allowed for retroactive application and conflicted with United States Supreme Court and Federal Circuit precedents. Specifically, in Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003), the Federal Circuit held that the Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Thus, Karnas allows the old criteria to be applied before and after the effective date of the amendment, if such is more favorable to the Veteran. But, in light of Kuzma, the amended regulation cannot be applied prior to the effective date unless it explicitly provides otherwise. In other words, the old and new regulations are for consideration with regard to rating the Veteran's disability, and he is entitled to the more favorable regulation; however, if the revised criteria are more favorable to the Veteran and provide for an increased rating, that award may not be made effective before the effective date of the change. See 38 U.S.C. § 5110 (g); VAOPGCPREC 3-00. In pertinent part, the amendments to the regulations impact rating knee disabilities under Diagnostic Code 5257 which governs recurrent subluxation and lateral instability of the knee. In this regard, the amended regulations consider whether there has been a sprain, incomplete ligament tear, or complete ligament tear causing persistent instability, unrepaired or failed repair of complete ligament tear causing persistent instability, and whether a medical provider has prescribed either an assistive device or bracing for ambulation. Additionally, the knee may be evaluated for patellar instability, to include whether a medical provider has prescribed either an assistive device or bracing for ambulation following surgical repair. As the evidence of record has shown varying degrees of reported instability and a meniscal tear, and as this matter is being remanded for the reasons set forth above, the Board finds that on remand, the RO must consider whether there is sufficient evidence to rate the service-connected left knee disabilities under the revised rating criteria, and whether an additional VA examination of the Veteran is required. The matters are REMANDED for the following action: 1. Review all evidence received since the October 2020 Supplemental Statement of the Case, including, but not limited to, additional treatment records and the October 2020 and January 2021 VA examination reports. Then, following any development deemed necessary, readjudicate the claims. In so doing, consider whether there is sufficient evidence to rate the service-connected left knee disabilities under the revised rating criteria, and whether an additional VA examination of the Veteran is required. If an additional VA examination is required, it should be afforded to the Veteran. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Orfanoudis, 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.