Citation Nr: 19106927 Decision Date: 01/29/19 Archive Date: 01/29/19 DOCKET NO. 16-54 922 DATE: January 29, 2019 REMANDED Entitlement to a rating in excess of 10 percent for right knee osteoarthritis is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1984 to February 1985, July 2005 to October 2007, and June 2008 to November 2009. These matters come before the Board of Veterans’ Appeals (Board) from an August 2013 rating decision. As a final preliminary matter, the Veteran has reported on several occasions that his ability to obtain and perform gainful employment has been limited by his service-connected disabilities and that he has only been able to be self-employed. He has also suggested that some or all of this self-employment has not been gainful. Entitlement to a TDIU may be an element of an increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Given the evidence of a current disability, the Veteran’s claim for the highest rating possible for his service-connected right knee disability, and the evidence of unemployability, the issue of entitlement to a TDIU is properly before the Board under Roberson and Rice and the Board has expanded the appeal to include this issue. 1. Entitlement to a rating in excess of 10 percent for right knee osteoarthritis is remanded. While the Veteran was most recently afforded a VA examination regarding his service-connected right knee disability in November 2015, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) or Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Specifically, as for Sharp, although the Veteran reported that he experienced weekly flare ups of right knee symptoms, the November 2015 examiner opined that she was unable to determine whether pain, weakness, fatigability, or incoordination significantly limited functional ability with flare ups and she did not provide any explanation or rationale for this conclusion. With respect to Correia, the November 2015 examination report does not contain passive range of motion measurements for both knees or information pertaining to pain on both weight-bearing and non weight-bearing. Hence, the Veteran should be afforded a new examination upon remand. Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the Cleveland Vista electronic records system and are dated to March 2017. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. 2. Entitlement to a TDIU due to service-connected disabilities is remanded. Since a decision on the remanded claim for an increased rating for the service-connected right knee disability could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. The issue of entitlement to a TDIU should be adjudicated in the first instance by the agency of original jurisdiction, to include appropriate notification and a request for the Veteran to submit a formal application for a TDIU (VA Form 21-8940). Also, all outstanding VA treatment records should be secured upon remand. The matters are REMANDED for the following action: 1. Send the Veteran a notice letter which provides him with notice as to the information and evidence that is required to substantiate his claim for a TDIU. A copy of this letter must be included in his claims file. 2. Ask the Veteran to complete a formal application for a TDIU (VA Form 21-8940) and to report his education and employment history and earnings, especially for the period since November 2010. 3. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for right knee disability, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for right knee disability from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 4. Obtain the Veteran’s VA treatment records from the Cleveland Vista electronic records system for the period since March 2017; and all such relevant records from any other sufficiently identified VA facility. 5. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination of the current severity of his service-connected right knee disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing of both the right and left knee. 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 service-connected right knee disability alone and discuss the effect of the Veteran’s 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 may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up. (Continued on the next page)   The examiner must provide reasons for any opinion given. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Elwood, Counsel