Citation Nr: 18149386 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 14-16 265 DATE: November 9, 2018 REMANDED An increased disability rating in excess of 10 percent for degenerative joint disease (DJD), right knee, status post two operative procedures with residual pain, is remanded. An initial disability compensable rating for impairment of the right knee associated with DJD, right knee status post two operative procedures with residual pain, prior to April 2018, and an evaluation in excess of 20 percent therefrom, is remanded. A total disability rating based on individual unemployability due to service-connected disability (TDIU), is remanded.   REASONS FOR REMAND The Veteran had active service from September 1972 to September 1975. This matter was originally on appeal from an August 2013 rating decision. The Veteran testified before the undersigned Veterans Law Judge in a hearing at the RO in May 2016. In August 2016 and January 2018, the Board remanded the issues on appeal to the RO for additional development. In a July 2018 rating decision, the RO granted a separate 20 percent rating from April 2018 for impairment of the right knee associated with DJD, right knee status post two operative procedures with residual pain, under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5257, which is for subluxation or instability. This rating was separate from the 10 percent rating already in effect for DJD, right knee status post two operative procedures with residual pain, assigned under § 4.71a, DC 5259, which pertains to symptomatic meniscus removal. In awarding a separate rating, the RO characterized the action as granting “service connection.” The Veteran did not appeal the rating assigned in the July 2018 rating decision. However, as the issues are intertwined, the Board finds that the separate rating granted in the July 2018 rating decision is included within the scope of the previously appealed increased rating issue and did not require a separate appeal. 1. An increased disability rating in excess of 10 percent DJD, right knee, status post two operative procedures with residual pain. 2. An initial disability compensable rating for impairment of the right knee associated with DJD, right knee status post two operative procedures with residual pain, prior to April 2018, and an evaluation in excess of 20 percent beginning therefrom. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding issues 1-2. Specifically, the Board remanded the claims in January 2018 to obtain a VA examination compliant with Correia v. McDonald, 28 Vet. App. 158, 168 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). Upon remand, a VA examination was conducted in April 2018. It does not reflect range of motion testing on weight-bearing and nonweight-bearing. In fact, the examination report is internally inconsistent on this question. In the first part of the examination, the examiner marked “Yes” where asked if there was pain with weight-bearing. Later, in a separate section labeled “Correia,” the examiner marked “None noted on exam” where asked if there was pain with weight-bearing. Another remand is required to obtain the missing information. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. A TDIU. The development and decision on the remanded increased rating issues will significantly impact a decision on the TDIU issue. Therefore, the issues are inextricably intertwined, and a remand of the TDIU issue is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination of the current severity of his right knee disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner 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 examiner should identify any symptoms and functional impairments due to the disability alone and discuss the effect of the Veteran’s right knee disability 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 examiner 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 examiner (does not have the knowledge or training). The examiner is also asked to comment on and describe the functional impairment caused solely by the service-connected disabilities as it pertains to the Veteran’s ability to function in an occupational environment. The examiner should, for instance, describe the limitations and restrictions imposed by his service-connected impairments on routine work activities for up to six hours per day, such as interacting with customers/coworkers and using technology, plus other physical activities such as sitting, standing, walking, lifting, carrying, pushing, and pulling, and mental activities such as understanding and remembering instructions, and sustained concentration. (Continued on the next page)   The examiner is asked to identify, to the extent possible, the date on which any change in degree of impairment first occurred. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Bosely, Counsel