Citation Nr: 20031968 Decision Date: 05/06/20 Archive Date: 05/06/20 DOCKET NO. 14-30 805 DATE: May 6, 2020 REMANDED Entitlement to an initial evaluation in excess of 10 percent disabling for service-connected degenerative arthritis, right knee, claimed as bilateral knee condition, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The record indicates that the Veteran served on active duty from June 1986 to August 1986, from March 1998 to June 1998, and from October 2001 to September 2003. In December 2017, the Veteran, accompanied by his representative, presented testimony under oath at a hearing via video conference before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. At the hearing, it was confirmed that the sole issue on appeal is the disability rating for the Veteran’s service-connected right knee disability. Most recently this appeal was before the Board in February 2018, at which time it was remanded for further development. For the reasons outlined below, the Board finds that remand is again needed. The issue of entitlement to a TDIU has been added pursuant to Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). See e.g. VA Form 9, July 2014. Two separate cover letters appear on the electronic docket on September 22, 2014, reflecting the submission of VA Forms 21-674 by a VSO. One of the cover letters indicates that the accompanying VA Form 21-674 is a copy to be returned to the Alabama Department of Veterans Affairs, whereas the other cover letter does not contain a return request for its enclosed form. There is only one copy of the VA Form 21-674 in the electronic record at September 22, 2014. Accordingly, the Board assumes that the other copy was returned as requested. As noted, the Board held a videoconference hearing and the issue of an outstanding document request was not raised. Therefore, the Board will proceed with adjudication. 1. Entitlement to an initial evaluation in excess of 10 percent disabling for service-connected degenerative arthritis, right knee, claimed as bilateral knee condition, is remanded. The Board finds that additional development is needed prior to final adjudication of the issue on appeal. Specifically, the Board finds that a new examination is needed in order to adequately assess the Veteran’s symptoms. The Veteran was afforded a VA examination in February 2018. The examination noted pain in flexion in the right knee, but did identify in terms of range of motion, where pain began. In addition, the examiner indicated that the Veteran does not suffer from flare-ups. However, at the December 2017 videoconference hearing, the Veteran indicated that there are days, “maybe two to three days,” when he took off work due to pain. These statements suggest the presence of flare-ups. The Board seeks further clarification of the severity of the Veteran’s disability. In addition, the Board finds that there may be outstanding private treatment records. In the July 2014 VA Form 9, the Veteran references treatment by a private physician for his knee. Upon remand, the Board asks that any outstanding treatment records be obtained. 2. Entitlement to a TDIU is remanded. This issue of entitlement to a TDIU is inextricably intertwined with the other issue on appeal. Accordingly, remand is appropriate. The matter is REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the issue on appeal. The Board notes that the Veteran referenced private treatment in a July 2014 VA Form 9. In addition, provide the Veteran with appropriate notice of how to substantiate a claim for entitlement to TDIU. Additionally, provide him with VA Form 21-8940 in connection with the inferred claim for entitlement to TDIU, and request that he supply the requisite information. All efforts should be documented in the claim file. If any effort could not be performed, or any document could not be obtained, this should be noted in the claim file. 2. Upon completion of the above, schedule the Veteran for a VA examination to evaluate the current level of severity of the service-connected disability on appeal. The claim folder and all pertinent treatment records should be made available to the examiner for review, and review of such records should be noted in any subsequent report. 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. The examiner is asked specifically to provide range of motion testing (ROM) for both knees for active motion, passive motion, weight-bearing, and nonweight-bearing. Full ROM testing must be conducted on the opposite joint unless the opposite joint is damaged, which includes any disorder that would make the joint in question abnormal. If the opposite joint is determined to be damaged, and no ROM on testing is conducted, this must be explained in the report. In addition, for both knees the examiner must discuss pain for ROM movements on active, passive, and repetitive use testing. The examiner is asked to address the following questions: (a) Are any ROM movements painful on active, passive, and repetitive use testing? If yes, identify whether active, passive, and repetitive use. (b) If yes (there are painful movements), does the pain contribute to functional loss or additional limitation of ROM? Please further describe the functional loss or additional limitation of ROM. (c) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. In addition, for both knees the examiner must discuss pain when used in weight-bearing or in nonweight-bearing. The examiner is asked to address the following questions: (a) Is there pain when the joint is used in weight-bearing or nonweight-bearing? If yes, identify whether weight-bearing or nonweight-bearing. (b) If yes (there is pain when used in weight-bearing or nonweight-bearing), does the pain contribute to functional loss or additional limitation of ROM? Please further describe these limitations. (c) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. For all ranges and planes of motion where pain is noted, the exact point at which pain start must be clearly noted. 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, as expressed in range of motion. To the extent possible, the examiner should identify any symptoms and functional impairments due to the knee disabilities and discuss the effect of the Veteran’s knee disabilities on any occupational functioning and activities of daily living. The examiner should address the impact of the Veteran’s service-connected disabilities on his employability. (Continued on next page) 3. If upon completion of the above action the issue is denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Foster, 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.