Citation Nr: 21000381 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 14-12 236A DATE: January 5, 2021 REMANDED Entitlement to a rating in excess of 10 percent for a right knee disability, to include degenerative joint disease, prior to July 8, 2019 is remanded. Entitlement to a compensable rating for right knee disability from July 8, 2019 is remanded. Entitlement to an effective date earlier than October 27, 2016, for the award of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1973 to October 1975, and from January 1976 to January 1978. These increased rating matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In its February 2020 decision, the Board elected to exercise jurisdiction over the TDIU effective date claim. In January 2018, the Veteran testified at a videoconference Board hearing before the undersigned. A transcript of that hearing is of record These matters were previously remanded by the Board in March 2018, January 2019 and February 2020 for additional development. For the reasons described below, additional development is, regrettably, still necessary. Entitlement to a rating in excess of 10 percent for right knee disability, to include degenerative joint disease (hereinafter “right knee disability”), prior to July 8, 2019 and entitlement to a compensable rating for right knee disability from July 8, 2019, is remanded. In its February 2020 Remand, the Board requested that the Veteran be scheduled for a new examination. In so doing, the Board noted that a previous examination noted that pain caused functional loss during flare-ups, but the examiner failed to estimate range of motion based on those flare-ups. The Board further noted that review of the 2014 and 2016 VA examinations also reveal reported flare-ups in the right knee without estimations made by the examiners as to range of motion loss based on these reported flare-ups and their impact. Thus, the Board remanded the matter in order to obtain current range of motion during a flare-up, and to obtain a retrospective medical opinion addressing limitation of motion during flare-ups of the Veteran’s right knee prior to July 8, 2019. The Board additionally asked that the examiner test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing. The Veteran was afforded an examination in October 2020. Regrettably, while the examiner did estimate loss of range of motion based on a flare-up, the examiner did not provide passive or non-weight bearing range of motion findings, despite finding evidence of pain. Moreover, the examiner provided no opinion as to the limitation of motion of the right knee prior to July 8, 2019. As the examiner failed to provide the medical findings requested without sufficient explanation, the Board finds the examination inadequate and a new examination is required. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (Once VA undertakes the effort to provide a medical examination or opinion, it must provide an adequate one). Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to an effective date earlier than October 27, 2016, for the award of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. The Board notes that the Veteran’s claim for an effective date earlier than October 27, 2016, for the award of a TDIU is inextricably intertwined with the foregoing issues, and so disposition of the issue is deferred. See Harris v. Derwinski, 1Vet. App.180, 183 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on a veteran’s claim for the second issue). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and current severity of his service-connected right knee disability. The Veteran’s electronic claims file must be accessible for review by the VA examiner in conjunction with the examination. A complete history from the Veteran should be obtained and recorded. All testing deemed necessary by the examiner should be performed and the results reported in detail. In particular the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If possible, provide these tests for the opposite joint. If the examiner is unable to conduct any aspect of the required testing or concludes that it is not necessary, e.g., non-weight-bearing, the examiner should clearly explain why that is the case. A detailed rationale for all opinions expressed should be provided. Following the review of the claims file and examination of the Veteran, the examiner is then requested to respond to the following: a. Describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. b. Indicate whether the examination is taking place during a period of flare-up, and if it is not, the examiner should ask the Veteran to describe the flare-ups, including: frequency, duration, severity, and functional impairment c. If the Veteran is not being observed during a flare-up or after repeated use over time during the examination, the examiner should still estimate any additional functional impairment based on the evidence of record and the Veteran's lay descriptions of repeated use or flares' severity, frequency, duration, and/or functional loss manifestations. If the examiner cannot estimate the degrees of additional range of motion during flare-ups without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge or by a deficiency in the record or the examiner. The examiner is also asked to provide a retrospective medical opinion regarding the extent of the Veteran’s functional loss (i) after repetition over time and, separately, (ii) during flare-ups for the period prior to July 8, 2019. The examiner should determine the additional functional loss the Veteran suffered during right knee flare-ups and after repetition over time by utilizing information in the medical records or other sources available to the examiner such as the September 2014 and November 2016 VA examination reports, to include the Veteran’s reported symptoms, and VA and private treatment records from the same period. To the examiner’s best ability, the additional range of motion loss should be described in degrees based on that information. If the examiner is unable to provide an opinion in this case, he or she should clearly explain the basis for the inability to do so. (Continued on the next page)   2. After completing all indicated development, the Agency of Original Jurisdiction should readjudicate the Veteran’s claims, to include the intertwined issue of entitlement to an effective date earlier than October 27, 2016, for the award of a TDIU. If the benefits sought on appeal remain denied, the Veteran should be furnished with a supplemental statement of the case, given the opportunity to respond, and the case should thereafter be returned to the Board for further appellate review, if warranted. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Slovick, 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.