Citation Nr: 20023923 Decision Date: 04/07/20 Archive Date: 04/07/20 DOCKET NO. 17-11 122 DATE: April 7, 2020 REMANDED Entitlement to an increased rating in excess of 10 percent prior to September 11, 2019, and in excess of 20 percent thereafter for left knee chondromalacia is remanded. Entitlement to an increased rating in excess of 20 percent for right knee chondromalacia is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active duty from February 1972 to October 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), based on a claim submitted in April 2012. The matters were remanded by the Board in December 2018. While the bilateral knee increased rating claims were pending on appeal, in an October 2019 rating decision, the RO increased the disability rating for the Veteran’s left knee disability from 10 to 20 percent disabling, effective September 11, 2019, and the Veteran’s right knee disability from 10 to 20 percent disabling, effective April 17, 2012. Although an increased rating was granted for each knee disability, the issues remain in appellate status, as the maximum schedular ratings have not been assigned. See AB v. Brown, 6 Vet. App. 35, 38 (1993). 1. & 2. Entitlement to an increased rating in excess of 10 percent prior to September 11, 2019, and in excess of 20 percent thereafter for left knee chondromalacia and entitlement to an increased rating in excess of 20 percent for right knee chondromalacia are remanded. Regrettably, the Board finds that remand is warranted to appropriately rate the Veteran’s service-connected knees. Notably, at the previous VA examinations dated September 2012 and December 2016, the VA examiners confirmed the Veteran was experiencing flareups due to his bilateral knee disabilities. However, neither VA examiner expressed any additional functional loss due to flareups in terms of additional degrees of limited motion. Accordingly, on remand, to the extent possible, a retrospective medical opinion, regarding additional limitations of motion due to functional loss, to include during flareups, should be obtained for the period beginning from April 17, 2012. See Chotta v. Peake, 22 Vet. App. 80, 85 (2008). Moreover, the September 2012 and December 2016 VA examinations show that the Veteran has non-service-connected knee diagnoses, including gout and osteoporosis. Thus, upon remand, the opining examiner should also confirm whether the symptoms of the service-connected bilateral chondromalacia are distinguishable from the symptoms of the nonservice-connected knee diagnoses. Furthermore, the examiner should confirm that the symptoms discussed in the VA examinations are in fact related only to the service-connected bilateral chondromalacia, and not any nonservice-connected knee diagnosis that has distinguishable symptoms. 3. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. The claim for entitlement to a TDIU should also be remanded. A determination on the claims being remanded herein could have a significant impact on the outcome of the TDIU issue. Therefore, the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Provide the entire claims file (including this Remand decision) to the examiner who performed either the September 2012 or December 2016 examination. If neither examiner is available, then any appropriate medical professional may offer the opinion. Regardless of who offers the opinion, if the examiner determines that an opinion may not be offered without first examining the Veteran, then schedule the Veteran for an appropriate examination. The examiner is asked to express a retrospective opinion concerning functional loss for the period from April 2012 to the present. The examiner is specifically asked to retrospectively assess such additional functional impairment during flareups in terms of the degree of additional range-of-motion loss, if possible. 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 September 2012 and December 2016 VA examinations show that the Veteran has non-service-connected knee diagnoses, to include gout and osteoporosis. The opining examiner is requested to confirm whether the symptoms of the service-connected bilateral chondromalacia are distinguishable from the symptoms of the nonservice-connected knee diagnoses, to include a determination of whether the service-connected disability is causing or aggravating the nonservice-connected knee diagnoses. Furthermore, the examiner should confirm that the symptoms discussed in the VA examinations are in fact related only to the service-connected bilateral chondromalacia, and not any non-service-connected knee diagnosis that has distinguishable symptoms. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The Agency of Original Jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) Any opinion expressed by the VA examiner should be accompanied by a complete rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). 2. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Cho, 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.