Citation Nr: 20022591 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 16-07 592 DATE: April 1, 2020 REMANDED Entitlement to a rating higher than 20 percent for right knee effusion, pain, and crepitus is remanded. Entitlement to a rating higher than 20 percent for status post left knee arthroscopic surgery for meniscal horn tear is remanded. Entitlement to a total disability evaluation based on individual unemployability due to the veteran’s service- connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1979 to October 1980. In February 2020, the Veteran and his significant other testified at a Central Office Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. A remand is necessary to provide the Veteran with a new VA examination to help determine the current severity of the bilateral knee disability and to further develop the newly raised claim for entitlement to a TDIU. Right and Left Knee Disabilities In the February 2016 substantive appeal (VA Form 9) as well as during the February 2020 Board hearing, the Veteran indicated that the knee disability worsened since his last VA examination in May 2013. Accordingly, a new VA examination is necessary. See Snuffer v. Gober, 10 Vet. App. 400 (1997). TDIU The Court has held that a request for TDIU is part and parcel of a higher rating when raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, during the February 2020 Board hearing, the Veteran testified that he stopped working due to his bilateral knee disability. Accordingly, the issue of entitlement to a TDIU was raised by the record and is remanded for further development. The matters are REMANDED for the following action: 1. Ensure all outstanding VA treatment records are associated with the claims file. 2. Send the Veteran the appropriate notice as to how to substantiate his request for a TDIU, including a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, for completion, with instructions to return the form to the RO. 3. Thereafter, Provide the Veteran with a VA examination to help identify the current severity of the right and left knee disability. The claims file must be made available to and be reviewed by the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. After a thorough review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Elicit from the Veteran all signs and symptoms of the right and left knee disability since the last VA examination in May 2013. In doing so, obtain information from the Veteran (and the treatment records) as to the frequency, duration, characteristics, severity, or functional loss with any repetitive use or during any flare-ups. (b) Full range of motion testing must be performed where possible. The joint in question and the paired joint should be tested in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. If pain is found during the examination, the examiner should note when the pain begins. (c) In assessing functional loss, flare-ups and increased functional loss on repetitive use must be considered. The examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion. **If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. A complete rationale should be provided for all opinions. 4. Thereafter, readjudicate the remanded claims. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Yaffe, 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.