Citation Nr: 18145086 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 16-27 163 DATE: October 26, 2018 REMANDED Entitlement to an initial disability rating greater than 10 percent for right knee strain with degenerative joint disease (DJD) is remanded. Entitlement to a compensable initial disability rating for right knee instability prior to November 28, 2014, and greater than 10 percent thereafter is remanded. Entitlement to a compensable initial disability rating for right knee extension is remanded. Entitlement to TDIU is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1965 to December 1967. The Veteran appeals a September 2013 rating decision by the Agency of Original Jurisdiction (AOJ) granting service connection for right knee strain with a 10 percent disability rating effective March 6, 2013. In a May 2016 rating decision, the AOJ assigned an effective date of April 3, 2011 for right knee strain, and granted a non-compensable disability rating for right knee extension effective April 20, 2016. In a September 2016 rating decision, the AOJ granted a 10 percent disability rating for right knee instability effective November 28, 2014. When, as here, a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). 1. Right Knee VA afforded the Veteran VA examinations in September 2013, April 2016, and July 2016 to assess the current severity of his right knee disability. However, the Board finds that the examinations are inadequate for adjudication purposes. The Board initially notes that on each occasion, the VA clinicians did not conduct range of motion testing for the Veteran’s non-service-connected left knee. The clinicians did not provide any explanation for such an omission. Further, the VA examination reports do not specify whether range of motion testing for the right knee was active or passive. In Correia v. McDonald, the Court of Appeals for Veterans Claims (Court) found that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 28 Vet. App. 158, 169-70 (2016). Hence, the examinations fail to comply with Correia, and remand is required to correct this deficiency. Further, at his September 2013 VA examination, the Veteran reported being unable to do prolonged weight-bearing activities because of flare-ups. At that examination, he complained of constant pain that worsened with prolonged walking or any impact activities. See September 2013 VA examination report. As a result, he avoids squatting and kneeling because of the pain. Importantly, the VA clinician noted that the Veteran’s flare-ups were associated with swelling and relieved with over-the-counter analgesics. Id. The Veteran also submitted a buddy statement attesting to his flare-ups. Specifically, T.W. stated he saw the Veteran walking and almost falling because of his knee giving out. See December 2015 T.W. statement. He also saw a big change in the way the Veteran walked compared to how the Veteran walked in 2010. Id. The Veteran also said he had to “quit [his] job because of the knee pain and lack of mobility and that only required [him] to be on [his] feet for about half an hour.” See June 2016 Veteran statement. Nevertheless, the April 2016 and July 2016 VA clinician stated that “[n]o flares were witnessed during or following the three repetitions of motion; therefore, significant additional limitations of functional ability due to pain, weakness, fatigability, or incoordination cannot be determined or described without mere speculation.” See April 2016 and July 2016 VA examination report. In Sharp v. Shulkin, the Court held that a VA examination is inadequate when the VA clinician does not elicit relevant information as to the Veteran’s flares or ask him to describe additional functional loss, if any, he suffered during flares and then does not “estimate the [Veteran’s] functional loss due to flares based on all the evidence of record (including the [Veteran’s] lay information) or explain why [he or she] could not do so.” 29 Vet. App. 26, 35 (2017). As the clinician limited his inquiry to observed flare-ups at the examinations themselves, and did not elicit information from the Veteran to estimate the Veteran’s functional loss, the VA examinations are inadequate for rating purposes. Considering these facts, additional VA examination of the Veteran’s right knee must be scheduled to determine its current severity. 2. TDIU In Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009), the Court held that a claim for TDIU due to service-connected disabilities is part and parcel of an increased rating claim when the record raises such claim. The Veteran stated he had to quit his job because of his “knee pain and lack of mobility and that [his job] only required [him] to be on [his] feet for about half an hour.” See June 2016 Veteran statement. As a decision on the remanded issues of entitlement to increased ratings for the Veteran’s right knee disability could significantly impact a decision on entitlement to TDIU, the issues are inextricably intertwined. Accordingly, the Board will defer decision on the matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records relevant to treatment the Veteran received for his right knee strain with DJD that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 2. Schedule the Veteran for an examination of the current severity of his right knee strain with DJD. The clinician must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If possible, this should include the range of motion for the left knee. The clinician must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the clinician should identify any symptoms and functional impairments due to the right knee alone and discuss the effect of the Veteran’s right knee strain with DJD on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the clinician must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the clinician (does not have the knowledge or training). 3. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Salazar, Associate Counsel