Citation Nr: 20041985 Decision Date: 06/19/20 Archive Date: 06/19/20 DOCKET NO. 09-27 002 DATE: June 19, 2020 REMANDED Entitlement to an initial evaluation in excess of 10 percent for right knee degenerative arthritis is remanded. Entitlement to an initial evaluation in excess of 10 percent for right knee posterior cruciate ligament and collateral ligament laxity is remanded. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from July 1970 to January 1972 and from March 1973 to September 1976. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2009 rating decision of the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). This case has been before the Board on several occasions during the Veteran’s appeal, most recently in December 2017 when it was remanded to the AOJ obtain additional medical information. The Veteran is service-connected and in receipt of separate 10 percent disability evaluations for right knee arthritis and right knee posterior cruciate ligament and collateral ligament laxity, and a 10 percent rating for residuals of a fractured fifth metatarsal fracture with traumatic arthritis. His combined disability evaluation is 30 percent. 1. Initial disability evaluations in excess of 10 percent for right knee degenerative arthritis, right knee posterior cruciate ligament and collateral ligament laxity, and TDIU are remanded. In December 2017, the Board remanded this case after determining that good cause had been presented to afford the Veteran another medical evaluation of his knees. In the February 2020 Supplemental Statement of the Case (SSOC), the AOJ determined that the Veteran had again failed to report for an examination of his knee disabilities as indicated in January and October 2018 examination requests sent to the Veteran. Review of the January and October 2018 VA examination requests shows the Veteran’s listed address differs slightly from May 2018 correspondence he had with VA. In late October 2018 the e-folder shows a change of address for the Veteran and in November 2018 he was contacted at another address. The Veteran has since been evaluated for his service-connected right foot disorder and other disabilities, but not for his knees. In February 2020 he was declared incompetent and a legal guardian has been appointed to manage his affairs. The Board notes further that the Veteran’s court-appointed guardian (and also VA appointed fiduciary) submitted a VA 21-2680 (Examination for Housebound Status or Permanent Need for Regular Aid and Attendance) in May 2020 in which the examiner indicated that the Veteran has dementia with behavioral disturbance and indicated further that it was unknown how often per day or week and under what circumstances the Veteran was able to leave his home or immediate premises. Thus, the AOJ should determine whether the Veteran is able to report for a VA examination before rescheduling the requested examination. Since it appears likely that the Veteran was contacted to present for a scheduled examination at an incorrect address, it would be imprudent to contemplate a failure to report determination at this point. As a matter of law, a remand by the Board confers on the Veteran the right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268 (1998) (as a matter of law, a remand by the Board confers on the Veteran the right to compliance with the remand orders). As a result, further action is required to evaluate his knee disabilities. 2. Entitlement to a TDIU is remanded. The TDIU claim is inextricably intertwined with the increased rating claims and the Board cannot fairly proceed with TDIU until the other claims are resolved. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). The matters are REMANDED for the following action: 1. Contact the Veteran (or go through his VA fiduciary/court-appointed guardian, if necessary) to determine whether the Veteran is willing and able to report for a VA examination. 2. Then, if the Veteran is able to report, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right knee degenerative arthritis, and service-connected right knee posterior cruciate ligament and collateral ligament laxity. The examiner should provide a full description of each disability and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. 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 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 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 should provide a complete rationale for any expressed opinions. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board William J. Jefferson III 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.