Citation Nr: 24018167 Decision Date: 04/29/24 Archive Date: 04/29/24 DOCKET NO. 17-04 059 DATE: April 29, 2024 REMANDED Entitlement to higher ratings for service-connected right knee arthritis status post meniscal tear with muscle atrophy of the right thigh is remanded. Entitlement to a rating of total disability due to individual unemployability based upon service-connected disorders (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November1990 to April 2011. The claims on appeal come before the Board of Veterans' Appeals (Board) on appeal of a March 29, 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 1. Entitlement to higher ratings for service-connected right knee arthritis status post meniscal tear with muscle atrophy of the right thigh is remanded. By way of background, the Veteran's service-connected right knee is rated accordingly: right knee instability (Diagnostic Code 5257), 30 percent effective November 2, 2019; right knee arthritis status post meniscal tear with muscle atrophy (DC 5003-5261, formerly DC 5003-5260), 10 percent effective May 1, 2011 until prior to February 8, 2022, then 20 percent thereafter); painful motion of the right knee (DC 5003-5259), 10 percent effective February 8, 2022. Taking all of these separate ratings at the right knee into account, the right knee by itself has been rated 10 percent disabling from the day after discharge until prior to November 2, 2019, then 40 percent combined thereafter until February 8, 2022, and then 50 percent thereafter combined. 38 C.F.R. §§ 4.25, 4.26. By way of additional background, the Veteran cannot have a combined rating for one disability that is higher than the rating for an elective amputation of the body part in question. 38 C.F.R. § 4.68. For knee disabilities that are contained to the middle third of the thigh or lower, a 60 percent rating is awarded for loss of use of that portion of the extremity. 38 C.F.R. § 4.71a, DC 5162-64. Higher ratings in excess of 60 percent are only possible for amputations involving the upper third of the thigh (measured from the perineum to the knee joint) (DC 5161, 80 percent), for complete disarticulation amputation (DC 5160, 90 percent), or for complete trans-pelvic amputation (DC 5160, 100 percent). No ratings appear to violate the Amputation Rule at this time; however, the Board provides this background information for the Veteran's benefit and understanding as the claims will be further developed. This claim has a long appellate history. It was first remanded on April 9, 2019, and then the Board attempted to adjudicate the claim on August 3, 2021. That portion of the denial was vacated upon a Joint Motion for Partial Remand granted by the Court of Appeals for Veteran Claims (CAVC) on June 30, 2022. The Board then remanded on November 3, 2022 for all due development by the AOJ. The claim returned to the Board on July 28, 2023, and the Board attempted to readjudicate the claims. Here, the Board denied higher ratings for the right knee, dismissed a claim for a total disability due to individual unemployability based upon service-connected disorders (TDIU) as moot effective May 22, 2021, and denied the Veteran's claim for a TDIU prior to May 22, 2021. The July 28, 2023 Board decision was wholly vacated by a Joint Motion for Remand (JMR), this one being granted by the CAVC on February 20, 2024. In sum and substance, the more recent JMR states that in order to adequately adjudicate the Veteran's claim for higher ratings for the right knee, the Board must fully analyze evidence of functional loss; however, in context of the earlier JMPR, this was not done before the July 2023 adjudication. See CAVC JMR (Feb. 20, 2023), at Page 2; see also Stegall v. West, 11 Vet. App. 268 (1998). On February 26, 2024, the Veteran was mailed a letter apprising him of the status of the claims and his appellate rights going forward. See BVA Post-CAVC Notice (Feb. 26, 2024). The appellate scheme set forth in?38?U.S.C. §?7104(a) contemplates that pertinent evidence will first be reviewed at the AOJ so as not to deprive the claimant of an opportunity to prevail with a claim at that level.? See generally?Disabled American Veterans?v. Secretary of Veterans Affairs,?327 F.3d 1339?(Fed. Cir. 2003). On April 5, 2024, the Veteran returned the form requesting a Board remand to the AOJ. See Reply to BVA Post-CAVC Notice (rec'd Apr. 5, 2024). This is the opposite of a waiver because the Veteran affirmatively enforced his right to have his claims remanded. Therefore, the Board has no choice but to remand all claims on appeal so that the AOJ can consider the newly associated evidence in the first instance and issue a Supplemental Statement of the Case, if appropriate. 2. Entitlement to a rating of total disability due to individual unemployability based upon service-connected disorders (TDIU) is remanded. This claim also has a long appellate history. It was first remanded on August 3, 2021. The claim then returned to the Board on July 28, 2023, and the Board attempted to readjudicate the claims. Here, the Board denied higher ratings for the right knee, dismissed a claim for a total disability due to individual unemployability based upon service-connected disorders (TDIU) as moot effective May 22, 2021, and denied the Veteran's claim for a TDIU prior to May 22, 2021. The July 28, 2023 Board decision was wholly vacated by a Joint Motion for Remand (JMR), this one being granted by the CAVC on February 20, 2024. In sum and substance, and about the claim for a TDIU prior to May 22, 2021, the Veteran claimed that after pursuing a Master's degree and working up to 20 hours weekly as a baker, he stated that he was unemployed as of March 2023, but the Board did not consider that evidence in the July 2023 Board decision. See CAVC JMR (Feb. 20, 2024), at Pages 3-4. Meanwhile, with respect to the Veteran's claim for a TDIU effective May 22, 2021, the Board dismissed that claim due to his already receiving a 100 percent rating for all combined disabilities. The CAVC JMR vacated that dismissal as well because special monthly compensation at the statutory housebound rate can be awarded for one totally disabling disability (even if that one is not rated 100 percent by itself, but so long as it could be the basis of a TDIU award by itself), and other disabilities separately combining as 60 percent disabling or more. See id. at Pages 4-5; see also, e.g.: Bradley v. Peake, 22 Vet. App. 280 (2008) (stating that special monthly compensation benefits are to be accorded when a veteran becomes eligible without need for a separate claim); Buie v. Shinseki, 24 Vet. App. 242, 249 (2011); Youngblood v. Wilkie, 31 Vet. App. 412 (2019); 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). On February 26, 2024, the Veteran was mailed a letter apprising him of the status of the claims and his appellate rights going forward. See BVA Post-CAVC Notice (Feb. 26, 2024). The appellate scheme set forth in?38?U.S.C. §?7104(a) contemplates that pertinent evidence will first be reviewed at the AOJ so as not to deprive the claimant of an opportunity to prevail with a claim at that level.? See generally?Disabled American Veterans?v. Secretary of Veterans Affairs,?327 F.3d 1339?(Fed. Cir. 2003). On April 5, 2024, the Veteran returned the form requesting a Board remand to the AOJ. See Reply to BVA Post-CAVC Notice (rec'd Apr. 5, 2024). This is the opposite of a waiver because the Veteran affirmatively enforced his right to have his claims remanded. Therefore, the Board has no choice but to remand all claims on appeal so that the AOJ can consider the newly associated evidence in the first instance and issue a Supplemental Statement of the Case, if appropriate. The Board additionally notes in passing that even if the Veteran did not enforce his right to have the claim for a TDIU remanded, the Board would have determined that the claim for a TDIU is inextricably intertwined with the claim for higher ratings of the right knee. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). The matters are REMANDED for the following action: 1. Readjudicate the Veteran's claim for higher ratings for the right knee throughout the appellate period, which begins on May 1, 2011. For the examiner's background information, the Veteran's right knee is rated as such: (a.) right knee instability (Diagnostic Code 5257), 30 percent effective November 2, 2019; (b.) right knee arthritis status post meniscal tear with muscle atrophy (DC 5003-5261, formerly DC 5003-5260), 10 percent effective May 1, 2011 until prior to February 8, 2022, then 20 percent thereafter); (c.) painful motion of the right knee (DC 5003-5259), 10 percent effective February 8, 2022. Taking all of these separate ratings at the right knee into account, the right knee by itself has been rated as follows combined: (a.) 10 percent disabling from the day after discharge until prior to November 2, 2019; (b.) 40 percent combined thereafter until February 8, 2022; (c.) 50 percent thereafter combined. 38 C.F.R. §§ 4.25, 4.26. On remand, the examiner must provide an adequate statement of reasons or bases that discusses the Veteran's functional loss in the context of whether a higher rating is warranted, which was not provided in the July 28, 2023 Board decision that has since been wholly vacated. Whether an updated VA examination is required is left to the discretion of the AOJ. 2. After the Veteran's claim for a right knee disorder is adequately readjudicated, only then readjudicate the Veteran's claim for a rating of total disability due to individual unemployability based upon service-connected disorders (TDIU). If there is any portion of the appellate period where the Veteran does not satisfy schedular criteria for the right knee by itself, see 38 C.F.R. § 4.16, then please either refer the matter to the Director of Compensation Service for adjudication on an extraschedular basis, or else please supply an adequate explanation of why such development is not warranted. Any subsequent adjudication of TDIU must include adequate explanations of the relevance or lack thereof of all of the following: (a.) The Veteran's pursuit of a Master's degree while working up to 20 hours weekly as a baker as of October 2021. (b.) The Veteran's claim that he was unemployed as of March 2023. 3. If any portion of any of the Veteran's claims on appeal are not yet granted in full, then issue him and his representative a Supplemental Statement of the Case (SSOC) and afford them an adequate opportunity to respond to it pursuant to all applicable appellate procedures. (This space intentionally left blank. VLJ signature on next page.) J.P. Norman Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Engle, Michael B. 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.