Citation Nr: 20044690 Decision Date: 07/06/20 Archive Date: 07/06/20 DOCKET NO. 12-15 214 DATE: July 6, 2020 REMANDED Entitlement to a disability rating in excess of 10 percent for right knee patellofemoral syndrome and chondromalacia with gouty arthritis is remanded. Entitlement to a total disability rating for individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1980 to November 1989 and from October 1993 to January 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony before a Veterans Law Judge (VLJ) in August 2013. In September 2017, the Veteran was informed that the VLJ who had presided over the Board hearing was no longer employed by the Board, and the Veteran was offered an opportunity for a new hearing, to which he did not respond. In July 2019, the Veteran indicated that he did not wish to appear at another Board hearing. Therefore, the Board may proceed with the matters. 1. Entitlement to a disability rating in excess of 10 percent for right knee patellofemoral syndrome and chondromalacia with gouty arthritis is remanded. The Veteran is seeking a disability rating in excess of 10 percent for his service-connected right knee patellofemoral syndrome and chondromalacia with gouty arthritis. Specifically, the Veteran contends that his right knee disability is more severe than reflected by his currently assigned disability rating. Based on a review of the claims file, the Board finds that additional development is needed prior to adjudication of the claim. In Correia v. McDonald, 28 Vet. App. 158, 169- 170 (2016), the United States Court of Appeals for Veterans Claims (Court) held that an adequate VA examination of the joints must, wherever possible, include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and with range-of-motion measurements of the opposite undamaged joint. In this case, the Veteran was afforded a VA examination for his right knee in August 2019. The Veteran reported functional impairment of the right knee caused by pain with activities that involved repetitive kneeling/squatting, climbing, prolonged standing, walking, and running. On examination, range of motion testing revealed flexion to 120 degrees and extension to 0 degrees. Flexion and extension exhibited pain and caused functional loss. Pain and lack of endurance significantly limited functional ability with repeated use over a period of time, with flexion to 105 degrees and extension to 5 degrees. Pain and lack of endurance also significantly limited functional ability with flare-ups, with flexion to 90 degrees and extension to 10 degrees. The examiner noted there was objective evidence of pain on passive range of motion testing and on non-weight-bearing testing of the right knee. While objective evidence of pain was noted on passive range of motion testing and on non-weightbearing testing of the right knee, range of motion measurements were not provided. The Board is unable to make an informed determination regarding the severity of the functional loss associated with the Veteran’s right knee without information regarding the extent range of motion is affected by pain on passive range of motion testing and on non-weightbearing testing. As such, the Board finds that remand for a new VA examination is required to cure these deficiencies. 2. Entitlement to TDIU is remanded. The Veteran is seeking to establish entitlement to TDIU. He contends he is unable to work due to his service-connected disabilities, specifically his right knee disability. Based on a review of the claims file, the Board finds that additional development is needed prior to adjudication of the claim. The record indicates that the Veteran is currently employed at a VA facility. However, the Veteran’s claims file does not contain the requisite information necessary to determine whether the Veteran has been unemployed at any time during his appeal, and if so, when he was unemployed. Further, if the Veteran was unemployed for any period during the appeal, his claim is inextricably intertwined with the issue remanded above. Previous Board remands directed the AOJ to attempt to obtain from the Veteran an updated claim form for TDIU; however, the Veteran failed to respond to the requests. The Board notes that the duty to assist is not a one-way street; the Veteran has a duty to cooperate with VA and facilitate needed development. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As this information is pertinent to the Veteran’s claim, while on remand, the Veteran should be given another opportunity to submit an Application for Increased Compensation Based on Unemployability, VA Form 21-8940. The matters are REMANDED for the following action: 1. Send the Veteran a VA Form 21-8940, a Veteran’s Application for Increased Compensation Based on Unemployability. Request that the Veteran submit all information necessary to demonstrate that for the period(s) he was unemployed, he was incapable of obtaining and maintaining substantially gainful employment to include work history and salary information. 2. Schedule the Veteran for an appropriate VA medical examination to assess the orthopedic manifestations of his right knee patellofemoral syndrome and chondromalacia with gouty arthritis. The Veteran’s electronic claims file must be made available for review prior to the examination and the examination report should reflect that such review was accomplished. All testing deemed necessary to rate the Veteran’s right knee patellofemoral syndrome and chondromalacia with gouty arthritis under the criteria of the VA rating schedule must be conducted and the results reported in detail. The examiner should test the range of motion in active motion, passive motion, weight-bearing, and non-weightbearing. The examiner is asked to indicate the point during range-of-motion testing that motion is limited by pain; it is not sufficient merely to indicate whether or not pain was present during one of the required range of motion tests. Testing should be conducted, and results provided, for the opposite joint, unless the opposite joint is damaged. If the opposite joint is determined to be damaged, and no range of motion testing is conducted, this must be explained in the 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 explain why. The examiner should describe the extent of any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology and/or is evidenced by visible behavior such as facial expression or wincing. The examiner should express an opinion as to whether pain or other manifestations during flare-ups or with repeated use could significantly limit functional ability of the affected part. The examiner should portray the degree of any additional range-of-motion loss due to pain on repeated use or during flare-ups. If no estimate can be provided, the examiner should provide a sufficiently detailed explanation as to why. A rationale for the opinions in the examination report must be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Silverblatt, 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.