Citation Nr: 20033366 Decision Date: 05/13/20 Archive Date: 05/13/20 DOCKET NO. 13-06 400A DATE: May 13, 2020 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to an increased rating for a right knee disability greater than10 percent is remanded. Entitlement to an increased rating for a left knee disability greater than 20 percent is remanded is remanded. REASONS FOR REMAND The Veteran had active service from February 1985 to August 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2007 rating decision by a Regional Office (RO) for Department of Veterans Affairs (VA), which denied entitlement to TDIU. This matter was previously before the Board in April 2015 where the Board, in addition to TDIU, also took jurisdiction over increased evaluation claims for the Veteran’s knee disabilities as part of his May 2007 claim in light of the procedural history. The procedural history will not be restated here and is incorporated by reference. In September 2017, the Veteran sent a letter indicating that he believed his back disorder was related to his service-connected knee problems. The Board does not have jurisdiction over that issue at this time as claims must be filed on the proper VA standardized form. See 38 C.F.R. § 3.155 (b)(3) (as in effect since March 24, 2015. Left and Right Knee Ratings As noted above, these issues were previously remanded in an April 2015 Board remand to obtain a more current VA examination. The Veteran was afforded such an examination in May 2016, but regrettably, the examination was not fully compliant with the Board’s prior remand directives and, therefore, additional remand is necessary. In the prior remand, the Board directed the examiner to conduct range-of-motion testing of the knees and provide commentary regarding functional loss, to include additional disability during flare-ups. The examiner was also asked to address meniscus impairment and/or instability of the ligaments, specifically indicating whether any found impairment is “slight, moderate, or severe.” The May 2016 VA examiner was not fully responsive to the Board’s directive. While the examiner found additional functional loss suffered during flare-ups, it was simply noted as “increased pain and decreased motion” without any opinion in terms of additional degrees of range of motion lose due to such flare-ups. See also Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). While the examiner found knee instability and subluxation, no opinion was rendered as to the degree of severity of these conditions. The Board further notes, the examination also did not contain passive and weight-bearing range of motion measurements in compliance with Correia v. McDonald, 28 Vet. App. 158, 168 (2016). For these reasons, the Board finds the examination in adequate to render a decision on the claim and non-responsive to the prior remand directive. A new VA examination is indicated. TDIU The TDIU claim is inextricably intertwined with the adjudication of the Veteran’s above increased rating claims. Thus, the Board will defer adjudication of the TDIU claim until the development deemed necessary for the claims has been completed. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Holland v. Brown, 6 Vet. App. 443 (1994); Henderson v. West, 12 Vet. App. 11 (1998). Finally, pertaining to all the claims on appeal, the Board notes that the Veteran was to be afforded a teleconference hearing with a Decision Review Officer per the last Board remand. A letter was sent to the Veteran in July 2017 requesting he provide a good phone number for him to be reached at to schedule a teleconference hearing. The Veteran returned a VA Form 21-4138 in September 2017, but there is no indication that a DRO hearing was scheduled or held. The matters are REMANDED for the following action: 1. Ask the Veteran to identify any VA or private treatment records that he may have for his knee disability. After securing any necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile the claims file should be noted and the Veteran should be notified of the unavailability of such records so he can attempt to obtain them on his own behalf. 2. Obtain from the appropriate German Government agency the records pertinent to any claim for disability benefits as well as the medical records relied upon for the claim. 3. The AOJ should ensure that any new evidence written in a foreign language is translated. Additionally, the Veteran should be scheduled for a teleconference with a DRO, if not already done. A transcript of any such conference should be included in the claims file. 4. Schedule the Veteran for a VA examination to determine the current severity of his bilateral knee disabilities. The claims folder, including a copy of this remand, must be made available to and reviewed by the examiner. The VA examination must include range of motion testing expressed in degrees for the knees for active motion, passive motion, weight-bearing, and nonweight-bearing for both knees. Correia v. McDonald, 28 Vet. App. 158 (2016). If it is not possible to provide a specific measurement 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 examiner is asked to describe any functional limitation due to pain, weakened movement, excess motion, fatigability, pain with use, incoordination, or on flare up. In so doing, 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. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement 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 examiner is also asked to specifically address the Veteran’s reports and medical findings of instability and subluxation throughout the appeal period. The examiner should specifically state whether such instability or subluxation has been slight, moderate, or severe throughout time and if the examiner finds that the severity has changed throughout the period on appeal when such change(s) occurred. The examiner should also address any meniscus impairment. The examiner should address when the Veteran’s right knee meniscal condition began to cause frequent episodes of locking, pain, and effusion. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow substantially gainful occupation consistent with his experience and qualifications by reason of the combined effects of the service-connected disabilities. Nonservice-connected disability and age cannot be considered in the opinion. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disabilities. (Continued on the next page)   5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined TDIU issue. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board John M. Middleton 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.