Citation Nr: 20002932 Decision Date: 01/14/20 Archive Date: 01/13/20 DOCKET NO. 10-22 582 DATE: January 14, 2020 REMANDED Entitlement to increased evaluation above 30 percent for service-connected left knee total arthroplasty (TKA) prior to July 10, 2019, and above 40 percent after that date, is remanded. Entitlement to a total rating based on individual unemployability (TDIU), to include on an extraschedular basis, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1972 to November 1975. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The appeal was remanded by the Board for development in January 2014 and May 2016, and in August 2017, the Board denied the appeal. The Veteran appealed the Board’s denial to the United States Court of Appeals for Veterans Claims (Court). In March 2018, pursuant to a Joint Motion for Remand (JMR) the Court vacated and remanded the Board’s August 2017 decision. In August 2018, the claim returned to the Board and was remanded for further development. An October 2019 rating decision increased the rating for this disability to 40 percent effective from July 10, 2019, the date of an examination that documented symptoms that warranted a higher rating. The requested development has been completed and regretfully the claim must again be remanded for further development. 1. Entitlement to increased evaluation above 30 percent for service-connected left knee total arthroplasty (TKA) prior to July 10, 2019, and above 40 percent after that date, is remanded. 2. Entitlement to a total rating based on individual unemployability (TDIU), to include on an extraschedular basis, is remanded. In this case, the Veteran and his representative seek an increased rating for his left total knee arthroplasty (TKA) currently rated at 40 percent under Diagnostic Code 5055-5261. Specifically, the Veteran and his representative contend his most recent Compensation & Pension (C&P) examination is inadequate for adjudicative purposes. In addition to his increase rating claim, the Veteran and his representative contend that, due to his left knee condition, he is unable to obtain substantially gainful work since 1997 and maintains he is entitled to a TDIU, to include on an extraschedular basis, from February 26, 2009. However, after a review of the record, the Board finds a remand necessary in order for an addendum opinion to be obtained regarding the severity of the Veteran’s left knee condition throughout the entire time frame on appeal (i.e., back to the date of claim of February 26, 2009, to include an opinion on whether the Veteran is capable of obtaining substantial and gainful employment at a desk or in an office-like setting. See 38 U.S.C. § 5103A(d). While the vocational opinion provided by the Veteran’s representative is detailed, it is not found to adequately address the impact of the Veteran’s disability on his ability to obtain and maintain gainful employment between the period of 2009 and 2014. The Board finds the issues of entitlement to an increased rating for TKA and entitlement to a TDIU to be inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). With regards to the Veteran’s TDIU claim, the Board would like to further point out that VA policy is to grant TDIU, regardless of the percentages, when service-connected disabilities actually render a veteran unemployable. 38 C.F.R. § 4.16(b). Where there is evidence that a veteran is unemployable by reason of service-connected disability, but does not meet the percentage requirements, the Board is required to remand the claim, so that it can be referred to VA’s Director of Compensation Service for adjudication in accordance with 38 C.F.R. § 4.16(b). Once a referral for an extraschedular TDIU rating under § 4.16(b) is made by the Board, the Director of Compensation Service then determines whether an extraschedular TDIU evaluation under § 4.16(b) is warranted. At that juncture, only then does the Board have jurisdiction to decide the TDIU claim on the merits when it returns. The matters are REMANDED for the following actions: 1. Schedule the Veteran for an appropriate VA examination to provide a functional assessment of the Veteran’s service-connected disabilities (left knee condition to include TKA) on his ability to secure or follow a substantially gainful employment consistent with his education and occupational experience, and without consideration of the Veteran’s age or nonservice-connected disabilities from the date of claim of February 26, 2009, to the present. Specifically, the examiner shall opine as to whether the Veteran is capable of working at a desk or in an office-like setting. 2. Upon completion the above directive, refer the case to the Director of Compensation and Pension Service for an opinion regarding whether the Veteran is unemployable due to his service-connected disabilities under 38 C.F.R. § 4.16(b) from the date of February 26, 2009, to the present. 3. Thereafter, readjudicate the claim for TDIU on an extraschedular basis. If the benefit sought is not granted, issue the Veteran and his representative a supplement statement of the case (SSOC) and return the matter to the Board for further review. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher J. DeBoer, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.