Citation Nr: 18155518 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 12-07 316 DATE: December 4, 2018 REMANDED Entitlement to a rating in excess of 20 percent for residuals of a right knee meniscal tear repair is remanded. Entitlement to a separate rating for removal of semilunar cartilage under Diagnostic Code (DC) 5259 is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1979 to August 1983. In August 2013, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In October 2013, the Board remanded the claims for entitlement a rating in excess of 10 percent for residuals of a meniscus repair, right knee and TDIU for further development and adjudicative action. In February 2015, the agency of original jurisdiction (AOJ) issued a rating decision awarding a separate 10 percent rating for instability of the right knee, effective from January 23, 2014. In a July 2015 decision and remand, the Board denied the Veteran’s claim for a rating in excess of 10 percent for the service-connected right knee disability; and, denied a compensable disability rating prior to January 23, 2014, and a rating in excess of 10 percent thereafter, for the service-connected right knee instability. The Board remanded the TDIU claim for additional development. The Veteran subsequently appealed the Board’s July 2015 denials to the United States Court of Appeals for Veterans Claims (the Court). In May 2016, the Court granted the Veteran and the VA Office of General Counsel’s Joint Motion for Remand (JMR) vacating the Board’s decision and remanding the case to the Board for further development and re-adjudication. In September 2016, the Board remanded the case to the AOJ for further development. In a July 2017 decision, the Board assigned a 20 percent rating for the Veteran’s right knee disability for the entire period covered by the claim. The Board also awarded a 10 percent rating prior to January 23, 2014, for instability of the right knee for the entire period covered by the claim. The Board denied the Veteran’s claim for a rating in excess of 10 percent for instability of the right knee; a separate compensable rating for right knee arthritis based on painful limitation of motion; and entitlement to TDIU. On May 16, 2018, the Veteran appealed the issue of entitlement to a rating in excess of 20 percent for residuals of a right knee meniscal tear repair to the Court. The parties to the JMR agreed that the Board failed to reconcile its finding that the Veteran’s semilunar cartilage was not removed with the medical evidence of record that demonstrated that the Veteran had a meniscectomy (surgical removal of a meniscus). Additionally, the parties found that the Board failed to provide adequate statement of reasons or bases for finding that the April 2017 VA examination was adequate. The parties stated that the examiner’s report did not indicate that ROM was tested both actively and passively or during weightbearing. Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). On May 24, 2018, the Court issued a JMR vacating the Board’s decision and remanding the claim to the Board for further development. The Board notes that in June 2018, the Veteran was afforded a knee and lower leg VA examination which complies with the Correia criteria. However, as the right knee issue was on appeal, the AOJ did not address the right knee replacement for evaluation purposes. Accordingly, the Veteran’s claim must be remanded for the AOJ to perform an initial review of evidence before the Board may adjudicate his claim. See 38 C.F.R. § 20.1304(c). In his May 2018 appeal to the Court, the Veteran, through his representative, stated that he was not appealing the Board’s TDIU denial. However, in his November 2018 Appellate Brief, the Veteran stated that he wished to have TDIU considered. The Board finds that the issue has been raised. However, the Board notes that the issue is “inextricably intertwined” with the claims on appeal, so, it must be remanded. Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). The matter is REMANDED for the following action: 1. Obtain and associate all outstanding VA and private treatment records with the claims file. 2. Issue a notice letter to the Veteran concerning the claim for TDIU. Ask him to complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. Upon receipt of the form, complete any additional development. 3. After completing any further development deemed necessary, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, furnish the Veteran and his representative an SSOC and afford them the opportunity to respond before the file is returned to the Board for further consideration. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Henry, Associate Counsel