Citation Nr: 21001314 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 14-34 404A DATE: January 7, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for left knee degenerative joint disease based on limitation of flexion is remanded. Entitlement to a compensable disability rating for left knee degenerative joint disease based on limitation of extension is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1969 to April 1971. This matter comes to the Board of Veterans’ Appeals (Board) from a July 2011 rating decision which, in pertinent part, continued a 10 percent rating for left knee degenerative joint disease and denied a TDIU. A December 2015 rating decision granted a noncompensable disability rating for left knee degenerative joint disease based on limitation of extension. In August 2017, the Veteran testified at a hearing before another Veterans Law Judge (VLJ). A transcript of the hearing is of record. In August 2018, the Board remanded for further development. In June 2020, the Veteran was informed that he could request a new hearing because the VLJ who presided at the August 2017 hearing was no longer employed by the Board. A hearing was not requested. The Board notes that the Veteran’s claims file contained VA treatment records belonging to another veteran. The Board has removed these records from the Veteran’s claims file to prevent reliance on them in the future. 1. Left knee degenerative joint disease The Board cannot make a fully-informed decision in this case. The Veteran has an amputation below the right knee, and he underwent an October 2019 VA examination to evaluate his left knee degenerative joint disease. He utilizes a right leg prosthetic. The Veteran asserts that the examination is inadequate because the examiner performed range of motion testing only while the Veteran was laying on his back and not with weight-bearing and that the examiner informed the Veteran that this is how knee examinations are performed for individuals with amputations. The Board notes that the VA examiner did not explain why weight-bearing range of motion testing was not medically appropriate, and the Board is not permitted to make its own medical evaluations. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). On remand, the agency of jurisdiction (AOJ) should obtain an addendum opinion from the October 2019 VA examiner, if possible, to consider the Veteran’s assertions, and explain that weight-bearing range of motion testing was not medically appropriate or indicate that a new examination is warranted. If the October 2019 VA examiner is unavailable, the AOJ should schedule the Veteran for a new examination. 2. TDIU In July 2010, the Veteran filed a formal claim for a TDIU stating that he stopped working for his former employer in November 2009, and an August 2017 letter stated that the employer could not offer the Veteran a position due to liability issues. However, there is evidence in the claims file showing the Veteran performed work activity after July 2010, to include an August 2010 VA examination where the Veteran reported doing towing jobs since being laid off; a June 2012 VA examination where the Veteran reported working until April 2012; a December 2014 treatment record where the Veteran reported working part-time as a heavy equipment operator; and August 2017 hearing testimony where the Veteran reported doing side jobs for friends hauling cars or other items. A TDIU is warranted when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. See 38 C.F.R. § 4.16(a). More information about the Veteran’s work activity after July 2010 is needed in determining whether the Veteran is entitled to a TDIU. On remand, the AOJ should provide the Veteran with an VA Form 21-8940 to obtain employment and salary information, to include self-employment, since July 2010. The Board notes that no opinion has been provided on the work-related limitations due to the Veteran’s service-connected depressive disorder, which is currently rated at 50 percent, effective April 16, 2012. On remand, the AOJ should obtain such an opinion. Although the Veteran filed a formal claim for a TDIU in July 2010, the Board notes that any work-related limitations due to depressive disorder cannot be considered for purposes of a TDIU prior to April 16, 2012. The matters are REMANDED for the following actions: 1. Provide the Veteran with a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, to obtain employment and salary information, to include self-employment, since July 2010. 2. Obtain an addendum opinion from the October 2019 VA examiner, if possible. The examiner should consider the Veteran’s assertions that weight-bearing range of motion testing should have been performed, and explain that such testing was not medically appropriate or indicate that a new examination is warranted. If the October 2019 VA examiner is unavailable or determines that a new examination is warranted, schedule the Veteran for an examination by an appropriate clinician regarding the current severity of his left knee degenerative joint disease. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability 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 possible. If the examiner determines that any testing is not medically appropriate, the examiner should provide a rationale for this conclusion. The examiner also must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups or after repetitive use. The examiner must describe the additional functional loss in terms of range of motion during flare-ups and after repetitive use. If the examination is not conducted during a flare-up or after repetitive use, the examiner must estimate the additional functional loss based on the medical evidence 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. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the extent of functional impairment attributable to his service-connected depressive disorder. The examiner should elicit from the Veteran his complete educational, vocational, and employment history and should note his complaints regarding the impact of his service-connected disabilities on employment. The examiner should identify all limitations or functional impairment caused solely by the Veteran’s service-connected depressive disorder. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Craig Ormson, 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.