Citation Nr: 18150023 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 10-47 258A DATE: November 14, 2018 REMANDED Entitlement to a disability rating in excess of 10 percent for service-connected chondromalacia and degenerative changes to left knee is remanded. Entitlement to a disability rating in excess of 10 percent for service-connected chondromalacia and degenerative changes to right knee is remanded. Entitlement to an initial disability rating in excess of 10 percent for service-connected left knee instability is remanded. Entitlement to an initial disability rating in excess of 10 percent for service-connected right knee instability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1976 to July 1993 in the United States Army. 1. Increased ratings for service-connected chondromalacia and degenerative changes to left knee and right knee are remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the claims for increased ratings for both knees. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, the Board’s previous remand instructed a VA examiner to offer an opinion on additional functional loss and impact in terms of range of motion caused by flare-ups of the Veteran’s knee symptoms, per Sharp v. Shulkin, 29 Vet. App. 26 (2017). The examiner did not attempt to elicit relevant information regarding the description of the Veteran’s flare-ups and any additional functional loss suffered during flare-ups. Addutionally, while the examiner stated that an opinion could not be provided without resort to speculation, the examiner did not indicate that the speculation was due to lack of knowledge within the medical community. 2. Entitlement to initial disability ratings in excess of 10 percent for service-connected right and left knee instability. Finally, because a decision on the remanded issues of increased ratings for service-connected chondromalacia and degenerative changes to left knee and right knee could significantly impact a decision on the issues of increased ratings for service-connected left kee and right knee instability, the issues are inextricably intertwined. A remand of the claims for increased ratings for service-connected left knee and right knee instability is required. 3. Entitlement to TDIU. In October 2018, the Veteran submitted a VA Form 21-8940, claim for TDIU, specifically citing his knee disabilities as a reason for his employment problems. A claim for TDIU is part of the increased rating claims before the Board. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board is aware that in the October 2017 remand, it noted that the RO had acknowledged a recently submitted notice of disagreement that included the denial of a TDIU claim and a claim for increased rating for a shoulder disability. The RO appears to be taking action on both claims; however, the TDIU claim is included with the increased rating claims currently before the Board. The matters are REMANDED for the following action: 1. Take all necessary development of the TDIU claim. See the October 2018 claim. 2. After completion of the foregoing, schedule the Veteran for an examination of the current severity of his service-connected chondromalacia and degenerative changes to left knee and right knee. The examiner must 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 chondromalacia and degenerative changes to the left knee and right knee alone and discuss the effect of the Veteran’s knee disabilities 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). 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues of increased ratings for service-connected left knee and right knee instability and the TDIU claim. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P.S. McLeod