Citation Nr: 18161236 Decision Date: 12/31/18 Archive Date: 12/31/18 DOCKET NO. 14-07 384A DATE: December 31, 2018 REMANDED Entitlement to a compensable evaluation for a left knee disability prior to March 4, 2011, and an evaluation in excess of 10 percent thereafter is remanded. Entitlement to a compensable evaluation for a right knee disability for the period prior to March 4, 2011, and an evaluation in excess of 10 percent thereafter is remanded. Entitlement to an evaluation in excess of 10 percent for a left shoulder disability for the period prior to March 4, 2011, and an evaluation in excess of 20 percent thereafter is remanded. Entitlement to a compensable disability evaluation for schizophrenia is remanded. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1974 to June 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a hearing before the Board on November 9, 2016. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). In June 2017, the Board issued a decision remanding these matters for further development, including to obtain Social Security Administration (SSA) disability records, to perform VA examinations regarding the left knee, right knee, and left shoulder disabilities, to develop the Veteran’s TDIU claim, and to readjudicate the issues. The Board finds substantial compliance with the directive to readjudicate the Veteran’s claim for an increased rating for degenerative joint disease of the left shoulder. In an August 2018 rating decision the RO expressly found that the severity of the Veteran’s degenerative arthritis most closely approximated the criteria for a 10-percent evaluation, while additionally finding warranted a 20-percent evaluation for recurrent glenohumeral joint dislocation, effective March 4, 2011. The Board also notes that the August 2018 rating decision granted the Veteran a 10-percent rating for his left and right knee disabilities, effective March 4, 2011. In light of these partial grants, the claims have been restyled. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007) (citing 38 U.S.C. § 5110). Unfortunately, the Board finds there has not been substantial compliance with other of the the Board’s June 2017 remand directives, and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Though the directed VA examinations for the left and right knee disabilities and left shoulder disability were provided, there was not substantial compliance with the directive that the examiner provide retrospective commentary on the Veteran’s respective levels of disability during the appeal period, to include the April 2011 examination. The Board also finds that the October 2017 VA examination for the Veteran’s knee disabilities inadequately failed to discuss how, if at all, the Veteran’s reported flare-ups factored into the assessment of functional loss. The examiner concluded that the Veteran has limited ability with prolonged walking/jogging/running, repetitive kneeling and squatting, but can otherwise do activities of daily living. The report did not, however, remark on how this conclusion incorporated the Veteran’s report that flare-ups were of a severity such that as recently as two weeks before the date of the examination he was hospitalized due to the pain in his knees. The Board will remand for an opinion that incorporates these considerations. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017) (citing DeLuca v. Brown, 8 Vet. App. 202, 206 (1995)). The Board further finds that the RO failed to substantially comply with the directive to readjudicate the Veteran’s claim for an increased rating for schizophrenia. This claim should be readjudicated along with all the other claims when completing the directives below, in consideration of all the evidence including the newly obtained SSA disability records. The Board restates its finding in the June 2017 decision that a claim for a total disability rating due to individual unemployability (TDIU) was raised as part of the Veteran’s claims for increased ratings. While the RO did substantially comply with the directive to provide required notice and assistance in response to the TDIU claim, the forms he received were not completed and returned, as the Veteran has noted. Because the Board is remanding again, it will offer him another opportunity to complete an application and provide any other relevant information, as such information would be relevant in adjudicating his claim. Then, the RO will be directed to adjudicate the matter in the first instance, to avoid any prejudice to the Veteran. See Bernard v. Brown, 4 Vet. Ap. 384, 393 (1993). (Please note, this appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) The matters are REMANDED for the following action: 1. Provide to the Veteran notice and assistance regarding a TDIU claim, and complete any necessary further development of the claim that may arise thereafter. 2. Obtain an addendum opinion from the October 2017 VA examiner, or if unavailable, from another appropriate clinician to provide, to the extent possible, retrospective commentary on the severity of the left shoulder disability during the appeal period, including consideration of the April 2011 VA examination. If the clinician is unable to offer any opinion at all, please expressly state so and provide an accompanying explanation. 3. Schedule the Veteran for an examination of the current severity of his left and right knee disabilities. 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 the left and right knee disabilities alone and discuss the effect of the Veteran’s disabilities, including during flare-ups, 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). Please express an opinion on whether pain could significantly limit functional ability, and if feasible portray this in terms of the degree of additional range-of-motion loss due to pain, including during flare-ups. Additionally, to the extent possible the examiner must provide retrospective commentary on the severity of the left and right knee disabilities during the appeal period, including consideration of the April 2011 VA examination. If the clinician is unable to offer any opinion at all, please expressly state so and provide an accompanying explanation. 4. Once the above is completed and any additional required development is completed, readjudicate all remaining issues on appeal, including but not limited to the schizophrenia claim and the TDIU claim. If any benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further appellate review. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Davis, Associate Counsel