Citation Nr: 18152843 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 11-15 438 DATE: November 27, 2018 REMANDED Entitlement to a disability rating in excess of 10 percent for the service-connected right knee disorder is remanded. Entitlement to a disability rating in excess of 10 percent for the service-connected left knee disorder is remanded. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) is remanded. REASONS FOR REMAND The appellant is a veteran (the Veteran) who had active duty service from January 1980 to April 1988. This appeal comes before the Board of Veterans’ Appeals (Board) from a February 2018 Order of the United States Court of Appeals for Veterans’ Claims (Veterans Court). The appeal originated from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In September 2014, the Veteran presented testimony at a Board hearing, chaired via videoconference by the undersigned Veterans Law Judge, and he accepted such hearing in lieu of an in-person hearing before a Member of the Board. See 38 C.F.R. § 20.700(e) (2017). At the Board hearing, the Veteran was informed of the bases for the RO’s denial of his claims, and he was informed of the information and evidence necessary to substantiate each claim. 38 C.F.R. § 3.103 (2017). A transcript of the hearing is associated with the claims file. In a decision dated in December 2016, the Board denied these issues. The Veteran appealed the Board’s decision to the Veterans Court. In February 2018 Order, pursuant to a Joint Motion for Remand, the Veterans Court vacated the Board’s December 2016 decision in part, and remanded these issues to the Board for additional development consistent with the Joint Motion. The claim of entitlement to TDIU is a component of the rating claims on appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a disability rating in excess of 10 percent for the service-connected right knee disorder is remanded. Entitlement to a disability rating in excess of 10 percent for the service-connected left knee disorder is remanded. Entitlement to TDIU is remanded. In the February 2018 Joint Motion, the parties agreed that remand to the Board was required because a May 2015 VA examination relied upon by the Board in denying increased ratings for limitation of motion of the knees was inadequate for rating purposes. The parties specified that the May 2015 VA examiner concluded that both knees were limited by pain, weakness and lack of endurance, but stated that the Veteran was not examined during a “flare up,” therefore “I can only speculate on range of motion during a flare up.” The parties noted that the examiner did not elicit relevant information as to the Veteran’s flares, or ask him to describe the additional functional loss, if any, he suffers during flares, and then either (1) estimate the functional loss due to flares based on all the evidence of record, including lay information, or (2) explain why she could not do so. Citing Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017). The parties specified that, on remand, the Board should obtain a new VA examination, or seek clarification of the May 2015 VA examination, to address the functional impact of flare-ups on the Veteran’s bilateral knee chondromalacia. The Board is bound by the findings contained in the Joint Motion, as adopted by the Veterans Court. See Chisem v. Gober, 10 Vet. App. 526, 527-8 (1997) (under the “law of the case” doctrine, appellate courts generally will not review or reconsider issues that have already been decided in a previous appeal of the same case, and therefore, Board is not free to do anything contrary to the prior actions of the appellate court with respect to the same claim). The issue of TDIU entitlement is inextricably intertwined and the proposed development will encompass that issue. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). The matters are REMANDED for the following action: 1. Schedule an appropriate VA examination to determine the manifestations and severity of the service-connected knee disorders. If possible, the examination should be scheduled during a symptom flare. After examining the Veteran and evaluating both knees, the examiner should describe the Veteran’s level of impairment, including during flares. Consistent with the rating schedule and the terms of the remand from the Veterans Court, such impairment should be described in terms of degrees of motion. When estimating limitation of motion during flares, the examiner should consider the Veteran’s descriptions of his symptomatology, particularly if the examination is not being conducted during a flare. The examiner should comment on the occupational impairments caused by the knee disabilities. All opinions are to be accompanied by a rationale consistent with the evidence of record. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. Readjudicate the remanded claims. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Cramp