Citation Nr: 22017909 Decision Date: 03/27/22 Archive Date: 03/27/22 DOCKET NO. 15-04 710 DATE: March 27, 2022 REMANDED Entitlement to an increased rating for traumatic arthritis of the left knee status post rupture of the left patella tendon, currently evaluated as 10 percent disabling, is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active duty service from January 1974 to January 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing in July 2018 before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The Board remanded the case for further development in October 2018. That development was completed, and the case was returned to the Board for appellate review. In a May 2020 decision, the Board denied the issue on appeal. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In an April 2021 Order, the Court granted a Joint Motion for Remand and vacated the May 2020 decision. The parties to the Joint Motion found that the Board did not adequately discuss whether a separate evaluation was warranted under Diagnostic Codes 5257, 5258, and 5259, as well as flare-ups. Notably, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, including Diagnostic Code 5257, were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). As such, the most recent VA examiner did not address whether the Veteran had patellar instability or any of the additional findings of instability now contemplated in the revised rating criteria. Therefore, the Board finds that another VA examination is needed to ascertain the current severity and manifestations of the Veteran's service-connected left knee disability. Moreover, in a May 2021 written statement, the Veteran asserted that he is unemployable due to his service-connected left knee disability. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for TDIU is part and parcel of an increased rating claim when such a claim is raised by the record. Therefore, the agency of original jurisdiction (AOJ) should develop the issue of TDIU. The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all healthcare providers who have provided treatment for his left knee. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate any outstanding records with the claims file. The AOJ should also secure any outstanding VA medical records. 2. After completing the foregoing development, the AOJ should schedule the Veteran for a VA examination to ascertain the severity and manifestations of his service-connected left knee disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the left knee disability under the rating criteria. In particular, the examiner should provide the range of motion in degrees of the right and left knees. In so doing, the examiner should test the Veteran's range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. The examiner should also indicate whether there is any ankylosis; dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint; or, the symptomatic removal of semilunar cartilage. The examiner should further state whether there is any malunion or nonunion of the tibia and fibula. In addition, the examiner should address whether the Veteran has recurrent subluxation or lateral instability, and if so, comment as to whether such symptomatology is slight, moderate, or severe. The examiner should also address whether the Veteran has a sprain, incomplete ligament tear, or complete ligament tear causing persistent instability and whether a medical provider has prescribed an assistive device (e.g., cane(s), crutch(es), walker) and/or bracing for ambulation. It should be noted whether the condition has been repaired, unrepaired, or has a failed repair. The examiner should further indicate whether the Veteran has patellar instability involving the patellofemoral complex with recurrent instability after surgical repair that has required a prescription from a medical provider for a brace, cane, and/or walker. It should be noted that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). If the examiner determines that the Veteran does not have recurrent subluxation, lateral instability, or patellar instability, he or she should provide an explanation and address the Veteran's reports of instability and use of a cane. The presence of objective evidence of pain, excess fatigability, incoordination and weakness should also be noted, as should any additional disability (including additional limitation of motion) due to these factors. The examiner should also discuss any additional functional impairment that occurs during flare-ups, including any additional limitation of motion. 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. 3. After completing these actions, the AOJ should ensure that the examination report complies with the preceding remand directives and take any corrective action if needed. 4. The AOJ should consider whether the Veteran is entitled to TDIU based on impairment attributable to his service-connected disabilities, in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). In so doing, the AOJ may decide to pursue development of the Veteran's employment history or obtain additional medical evidence or a medical opinion, as is deemed necessary. 5. The AOJ should conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.S. Chilcote 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.