Citation Nr: 21000779 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 11-18 621A DATE: January 6, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent prior to February 21, 2012 and in excess of 20 percent thereafter for right knee instability is remanded. Entitlement to an initial compensable rating prior to August 24, 2016, and in excess of 20 percent thereafter for right knee limitation of extension is remanded. Entitlement to an initial rating in excess of 10 percent for left knee limitation of flexion is remanded. Entitlement to an initial compensable rating prior to August 24, 2016 and in excess of 10 percent thereafter for left knee instability is remanded. Entitlement to an initial compensable rating for left knee limitation of extension is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to August 26, 2016, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1978 to August 1981. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in August 2010 and July 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, the RO granted service connection for a right knee disability in August 2010, assigning a 10 percent rating effective February 26, 2010. The Veteran filed a notice of disagreement with the assigned rating in October 2010, and subsequently perfected an appeal to the Board. In July 2013, the RO granted service connection for a left knee disability, assigning a rating of 10 percent effective February 26, 2010. The Veteran then separately and timely perfected an appeal as to the assigned 10 percent rating. The two issues have been combined into a single appeal for the purposes of Board review. In a rating decision issued in December 2017, the RO granted entitlement to a TDIU, effective August 24, 2016. As this constitutes a full grant of benefits sought from that date forward, the issue of entitlement to a TDIU from August 24, 2016 forward is no longer on appeal. Ab v. Brown, 6 Vet. App. 35 (1993). However, as noted in the prior remand entitlement to a TDIU has been raised by the record and is part and parcel of the increased rating claims on appeal. Rice v. Shinseki, 22 Vet. App. 447, 453–54 (2009). As TDIU was not granted for the entirety of the appellate period for the increased rating claim, the grant does not bifurcate the TDIU issue. Harper v. Wilkie, 30 Vet. App. 356, 359–62 (2018). The issue has been recharacterized as entitlement to a TDIU prior to August 24, 2016. 1. Entitlement to increased ratings for the right and left knees. The Board remanded the claims for increased rating for the right and left knees in May 2018 so that the Veteran could be provided with a new VA examination to determine the current severity of the right and left knee disabilities. In the remand body the Board noted that the Veteran had previously endorsed flare-ups with loss of motion in an October 2013 examination, and that no attempts had been made to estimate the degree of that reported loss. In the remand directives, the Board stated, in pertinent part, that “the examiner should specifically ask the Veteran to describe the factors that precipitate a flare-up and the frequency, duration, and severity of any flare-ups of either knee since February 2010.” The examiner was then further requested to use that information to comment on functional limitations caused by pain and any other associated symptoms. A VA examination was obtained in October 2019. The examiner evaluated both the right and left knee disabilities, and recorded his findings in the examination report. However, with respect to flare-ups the examiner simply noted that the Veteran did not report any at the time of the examination, and therefore provided no further information concerning loss of function or range of motion during flare-ups of either knee disability. The Board notes that examiners are only required to attempt to provide estimates concerning loss of motion during flare-ups when a Veteran in fact endorses flare-ups. Sharp v. Shulkin, 29 Vet. App. 26, 34–36 (2017). Thus, the October 2019 opinion would be adequate had the Board decision simply requested an updated evaluation of the severity of the disabilities. However, the Board requested that the examiner elicit information concerning flare-ups of either knee since February 2010 and then provide an estimate concerning range of loss based on these reports. Thus, in effect the Board also requested that the examiner provide an estimate of range of motion loss during previously reported flare-ups. Chotta v. Peake, 22 Vet. App. 80, 85–86 (2008). As noted in the prior Board remand, the Veteran endorsed flare-ups on both October 2013 and August 2016 VA examinations. As there is clearly evidence that the Veteran experienced flare-ups for the knee disabilities since February 2010, the examiner should have obtained information concerning the frequency, duration and severity of those flare-ups and provided an estimate of range of motion loss based on that information. As the examiner only noted that the Veteran did not report flare-ups at the time of the October 2019 examination, and did not consider the prior documented reports of flare-ups, the Board finds that there was not been substantial compliance with the May 2018 remand directives. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, a remand is in order for a new examination which complies with the May 2018 directives. 2. Entitlement to a TDIU. Concerning entitlement to a TDIU, the Board finds that any determinations with respect to the remanded claims would materially affect a determination concerning entitlement to a TDIU. As such, it is inextricably intertwined with the claims being remanded and must therefore be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the severity of the left and right knee disabilities. The examiner is asked to provide the following: (a) Report the extent of the symptoms of the left ankle disability in accordance with VA rating criteria. (b) Test for pain on active motion, passive motion, weightbearing, and non-weightbearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, an explanation must be provided. (c) Regardless of whether the Veteran endorses flare-ups at the time of the examination, based on the Veteran’s lay statements and the other findings in the October 2013 and August 2016 examination reports, the examiner should provide an opinion estimating any additional degrees of limited motion of the left and right knees caused by functional loss during a flare-up. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Wendell, 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.