Citation Nr: 20040163 Decision Date: 06/11/20 Archive Date: 06/11/20 DOCKET NO. 10-49 270 DATE: June 11, 2020 REMANDED Entitlement to increased disability ratings for left knee degenerative lateral meniscus tear with degenerative joint disease and lateral compartment post arthroscopies, currently rated as 10 percent since March 1, 2010, and 20 percent since October 27, 2017, is remanded. Entitlement to an initial compensable disability rating for leg, limitation of extension of left knee, since June 29, 2019, is remanded. Entitlement to higher initial disability ratings for left knee instability, currently rated as 10 percent since May 19, 2016, and 20 percent since December 18, 2019, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to September 22, 2014, to include on an extraschedular basis, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1980 to July 1984 and from July 1985 to June 1990. These matters are on appeal from December 2009, May 2010, July 2016, May 2017, April 2018, July 2019, and January 2020 rating decisions. This appeal was remanded by the Board of Veterans’ Appeals (Board) in March 2013, February 2016, September 2017, August 2018, June 2019, and November 2019. The Veteran testified before a Veterans Law Judge (VLJ) of the Board in October 2011. The VLJ has since retired, and the Veteran was afforded the opportunity for a second Board hearing. In August 2017, the Veteran declined a second hearing. The left knee meniscus issue has been on appeal since 2009. Since that time, service connection has been awarded for limitation of extension and instability of the left knee. These issues are intertwined with the left knee meniscus issue, and thus the Board has added the limitation of extension and instability issues to the current appeal. 1. Entitlement to increased disability ratings for left knee degenerative lateral meniscus tear with degenerative joint disease and lateral compartment post arthroscopies, currently rated as 10 percent since March 1, 2010, and 20 percent since October 27, 2017, is remanded. 2. Entitlement to an initial compensable disability rating for leg, limitation of extension of left knee, since June 29, 2019, is remanded. 3. Entitlement to higher initial disability ratings for left knee instability, currently rated as 10 percent since May 19, 2016, and 20 percent since December 18, 2019, is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous November 2019 remand directives regarding the left knee issues. Upon remand, the Veteran was provided a VA examination in December 2019. The VA examiner found that the Veteran had pain upon flexion of the left knee, but the examiner did not state at what point during the range of motion the pain began. The Board stated in its remand directive that the examination report would be inadequate for rating purposes without this finding. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998).   Upon remand, the Agency of Original Jurisdiction (AOJ) should also obtain updated pertinent VA treatment records. 4. Entitlement to a TDIU prior to September 22, 2014, to include on an extraschedular basis, is remanded. On a May 2015 VA 21-4192 Form, the U.S. Postal Service (the Veteran’s former employer) stated that the Veteran received a disability retirement because of his left knee disability. This statement indicates that there may be outstanding and relevant U.S. Postal Service and/or Office of Personnel Management records. A remand is required to allow VA to request these records. Upon remand, the AOJ should also request the Veteran’s tax returns to confirm his claimed unemployment during the appeal period. Further, the Veteran’s service-connected disabilities do not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a) prior to September 22, 2014. On a May 2015 VA 21-4192 Form, the U.S. Postal Service indicated that the Veteran received a disability retirement because of his left knee disability in February 2012. The Veteran is currently in receipt of a TDIU, effective September 22, 2014, the date he met the schedular requirements for a TDIU. The Veteran’s claim for a TDIU prior to September 22, 2014, is being remanded and referred to VA’s Director of Compensation Service for extraschedular consideration. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s federal records from the U.S. Postal Service and/or Office of Personnel Management regarding his disability retirement claim. Document all requests for information as well as all responses in the claims file.   2. Ask the Veteran to provide IRS tax returns from 2009 through 2014, and a statement that the copy is an exact duplicate of the return filed with the IRS. Provide the Veteran with an IRS Form 4506-T “Request for Transcript of Tax Return,” which may also be found at https://www.irs.gov/pub/irs-pdf/f4506t.pdf so that the Veteran may request tax returns from 2009 thru 2014, and submit them to VA. Tell the Veteran that if he does not have copies of his tax returns for the requested years, he may use the IRS form cited to above. 3. Obtain the Veteran’s pertinent VA treatment records for the period from October 2019 to the Present. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected degenerative lateral meniscus tear with degenerative joint disease and lateral compartment post arthroscopies, limitation of extension, and instability of the left knee. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing of both knees. If pain is noted, the point during range of motion at which pain begins must be clearly indicated, or the report will be inadequate for rating purposes. 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). In so doing, the examiner must 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). 5. After the above development, refer the Veteran’s claim for a TDIU prior to September 22, 2014, to VA’s Director of Compensation Service for extraschedular consideration. 6. After the above development, and any additionally indicated development, has been completed, readjudicate the issues. If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran and his   representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shauna M. Watkins, 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.