Citation Nr: 20043745 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 14-31 041 DATE: June 29, 2020 REMANDED Entitlement to an initial disability rating in excess of 10 percent for left knee osteoarthritis with anterior cruciate ligament (ACL) sprain is remanded. Entitlement to an effective date earlier than December 2, 2015 for the grant of entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disease or injury, to include on an extraschedular basis, is remanded. Entitlement to an effective date earlier than December 2, 2015 for the grant of entitlement to Dependents’ Educational Assistance (DEA) benefits under 38 U.S.C. Chapter 35 is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Army from December 1983 to July 1990. These matters previously came before the Board of Veterans’ Appeals (Board) in March 2018 and February 2019, whereupon they were remanded for further evidentiary development. 1. Entitlement to an increased initial rating for left knee osteoarthritis with ACL sprain The Veteran contends that he is entitled to an increased initial rating for his service-connected left knee disability. He was last afforded a VA examination for this disability in June 2019. On review, however, the Board finds that the examiner failed to comply with the necessary requirements of Sharp v. Shulkin, 29 Vet. App. 26 (2017). In particular, although the Veteran reported that he experienced flare-ups of left knee pain, and that such flare-ups caused additional functional impairment, including the inability to stand for long periods of time or walk long distances, the VA examiner’s report did not include an estimate as to the additional range of motion lost during the Veteran’s flare-ups, nor does the report contain any meaningful discussion of the frequency, duration, characteristics, or overall severity of his flare-ups. See id. at 34-35 (holding that an examiner must do all that reasonably should be done to become informed about a case and elicit relevant information as to a claimant’s flare-ups, such as the claimant’s lay statements regarding the frequency, duration, characteristics, severity, or functional loss of a flare-up). This information is necessary to properly rate the Veteran’s disability. The Board further finds that clarification is needed regarding whether the Veteran’s left knee disability manifests in ankylosis. In its February 2019 remand, the Board asked a VA examiner to reconcile the positive findings of ankylosis of record (as noted, for example, in a December 2017 evaluation completed by a private physician) with negative findings as indicated on multiple VA examination reports. Although a responsive medical opinion was provided in June 2019, the Board finds that it is does not adequately address the Board’s concerns. The June 2019 opinion states: Ankylosis is not appreciated on exam or documented on DBQ. The severity of ankylosis can increase and decrease depending on activity level. The inflammation that comes as a result from ambulation and increased physical activity can worsen established inflammation and joint stability. The Board finds that this opinion is confusing and somewhat contradictory, as the examiner seems to state that although ankylosis was not observed during that particular examination, the Veteran’s symptoms could approximate ankylosis depending on his level of activity. As noted above, these findings highlight the importance of properly evaluating the frequency, severity, and duration of the Veteran’s flare-ups. For these reasons, an updated VA examination is needed. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA undertakes to provide a medical examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate). 2. Entitlement to an earlier effective date for the grant of TDIU, to include on an extraschedular basis, and DEA benefits The Board has previously determined that the Veteran’s claims for earlier effective dates for the grant of a TDIU and DEA benefits are inextricably intertwined with his claim for an increased initial rating for his left knee disability. This is the case because an award of an increased schedular rating for his left knee disability prior to December 2, 2015 could result in entitlement to a TDIU or DEA benefits prior to that date as well. Thus, these issues must also be remanded. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on the second issue). With respect to the TDIU claim, the Board notes that the Veteran does not currently meet the numerical requirements for a TDIU prior to December 2, 2015. See 38 C.F.R. § 4.16(a). Notwithstanding, entitlement to a TDIU may still be considered on an extraschedular basis, pursuant to 38 C.F.R. § 4.16(b). The Veteran’s attorney argued in May 2020 correspondence that TDIU on an extraschedular basis is warranted prior to December 2, 2015 based on the findings of a private physician, who opined in December 2017 that the Veteran’s left knee disability had rendered him incapable of performing full-time gainful employment since August 2012. The issue of entitlement to extraschedular TDIU is determined in the first instance by VA’s Director of Compensation Service. Id.; Bowling v. Principi, 15 Vet. App. 1, 10 (2001). On remand, after the claim for an increased initial rating for the Veteran’s left knee disability has been developed and adjudicated, the RO should consider whether a referral for consideration of extraschedular TDIU prior to December 2, 2015 is appropriate. The matters are REMANDED for the following action: 1. Obtain outstanding VA medical records pertaining to the Veteran for the period from April 2020 to the present. 2. Schedule the Veteran for an examination of the current severity of his left knee disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. 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. The examiner is asked to describe whether pain significantly limits functional ability during flares, and if so, the examiner must estimate range of motion during flares. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s left knee disability alone and discuss the effect of this disability on any occupational functioning and activities of daily living. IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES’ SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner is also asked to opine as to whether the Veteran’s left knee symptoms approximate ankylosis, to include during flare-ups. Specifically discuss (a) the December 2017 evaluation by Dr. B noting ankylosis in flexion between 10 and 20 degrees; and (b) the June 2019 VA medical opinion noting that the “severity of ankylosis can increase and decrease depending on activity level,” and that “the inflammation that comes as a result from ambulation and increased physical activity can worsen established inflammation and joint stability.” (Continued on the next page)   3. After the actions specified in (1) and (2) have been completed, re-evaluate the issues of entitlement to an effective date earlier than December 2, 2015 for the awards of TDIU and DEA benefits, in light of any subsequent award/s of disability compensation. 4. After the action specified in (3) has been completed, and if the benefit sought on appeal remains denied, refer the issue of entitlement to an earlier effective date for the award of TDIU to the Director of Compensation Service for a determination as to whether the Veteran is entitled to a TDIU on an extraschedular basis in accordance with the provisions of 38 C.F.R. § 4.16(b). A full statement as to the Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be provided. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Minot, 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.