Citation Nr: 20005463 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 13-04 109 DATE: January 23, 2020 REMANDED Service connection for a left knee disability is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities is remanded. REASONS FOR REMAND The Veteran had active service from August 1996 to February 1997, and from March 1997 to March 2002. Left knee With regard to the Veteran’s left knee disability, in requesting a VA opinion, the August 2016 and September 2019 Remands directed the examiner to discuss a November 2, 2010 VA orthopedic surgery consultation note demonstrating a diagnosis of left knee patellofemoral chondromalacia and retropatellar pain. The same VA physician’s assistant examiner has proffered the March 2016, May 2019, and October 2019 opinions and was unable to locate the November 2010 orthopedic consultation, despite the citation being included in the September 2019 Remand directive. The November 2, 2010 orthopedic consultation is located in the following location within the virtual record – 07/17/2015 CAPRI at 48. Remand is necessary for an addendum opinion in which an examiner reviews the November 2, 2010 orthopedic consultation and proffers an etiological opinion. Stegall v. West, 11 Vet. App. 268, 271 (1998). TDIU The Veteran’s claim of entitlement to TDIU is also remanded as inextricably intertwined with the Veteran’s claim of entitlement to service connection for his left knee disability. The Board notes that the Veteran has been assigned a 100 percent disability rating, effective September 9, 2010. While the entitlement to a TDIU may be found to be moot where a veteran has been assigned a disability rating of 100 percent, the Board recognizes that is not always the case. The VA’s duty to maximize a claimant’s benefits includes consideration of whether his disabilities establish entitlement to special monthly compensation (SMC) pursuant to 38U.S.C. §1114 (s). See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). That statute provides for additional compensation if the Veteran is in receipt of a 100 percent rating and has additional disability ratable at 60 percent or higher. The Court held in Buie and Bradley v. Peake, 22 Vet. App. 280, 294 (2008) that a 100 percent schedular rating does not render TDIU moot if the TDIU would assist the Veteran in obtaining SMC pursuant to 38 U.S.C. § 1114 (s). In this case, service connection is in effect for a mood disorder with depression and anxiety, rated 100 percent disabling, lumbar spondylosis, rated 20 percent disabling, and chondromalacia patella of the right knee, rated 10 percent disabling. As the nature and etiology of the Veteran’s left knee disability remains at issue, as well as whether it causes unemployability apart from his service-connected mood disorder, the September 2019 Board found that further consideration of TDIU may benefit the Veteran by assisting him in obtaining SMC pursuant to 38 U.S.C. § 1114 (s). While the November 2019 supplemental statement of the case addressed the TDIU issue, no consideration was given to entitlement to SMC pursuant to § 1114 (s). The issue of a TDIU is remanded as inextricably intertwined with the Veteran’s pending left knee claim, to include consideration of entitlement to SMC. The matters are REMANDED for the following actions: 1. Request that a VA clinician with appropriate expertise review the virtual folder, to include the November 2, 2010 VA orthopedic surgery consultation note located at 07/17/2015 CAPRI at page 48, and provide an opinion as to whether it is at least as likely as not (a 50 percent probability or more) that the Veteran’s left knee disability had its onset during military service or is otherwise etiologically related to such service. The examiner must specifically discuss the November 2, 2010 VA orthopedic surgery consultation note demonstrating a diagnosis of left knee patellofemoral chondromalacia and retropatellar pain in formulating an opinion. The examiner must also discuss the expected limitations in the workplace brought about by the left knee, if deemed related to service or service-connected disability. The examiner must discuss the September 2010 VA examiners finding that the Veteran’s working capacity is severely limited by back and knee problems and should consider the Veteran’s occupational history. A complete rationale must be provided for all opinions expressed. If an opinion cannot be provided without resort to speculation, the examiner should provide reasons why this is so and state whether the inability to provide the needed opinion is due to the limits of medical knowledge of missing evidence. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. 2. Readjudicate the claim of entitlement to a TDIU, to include entitlement to SMC pursuant to § 1114 (s). Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.W. Kreindler, 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.