Citation Nr: 21003067 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 14-39 015 DATE: January 19, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for right knee strain is remanded. Entitlement to an initial rating in excess of 30 percent for left knee instability is remanded. Entitlement to an initial rating in excess of 40 percent for left quadriceps atrophy is remanded. Entitlement to an initial compensable rating for left knee surgical scar is remanded. Entitlement to a rating in excess of 10 percent for tear of the left medial meniscus is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND [Insert dates of service and jurisdictional information only where relevant to the adjudication of the issues on appeal.] The Veteran served on active duty in the United States Navy from February 1969 to December 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in May 2018 when they were remanded for additional development. 1. Entitlement to an initial rating in excess of 10 percent for right knee strain is remanded. 2. Entitlement to an initial rating in excess of 30 percent for left knee instability is remanded. 3. Entitlement to an initial rating in excess of 40 percent for left quadriceps atrophy is remanded. 4. Entitlement to an initial compensable rating for left knee surgical scar is remanded. 5. Entitlement to a rating in excess of 10 percent for tear of the left medial meniscus is remanded. 6. Entitlement to TDIU is remanded. After a review of the evidence of record, the Board finds that these matters must be remanded for additional development. The most recent Supplemental Statement of the Case (SSOC) was issued in September 2019. Since that time, the Veteran underwent a VA examination for his bilateral knee disabilities. See November 2020 VA knee and lower leg conditions examination. The Veteran has also identified outstanding treatment records for his service-connected disabilities. See September 2020 attorney statement (identifying current treatment at the Lake Baldwin VA Clinic and Orlando VA Medical Center (VAMC). See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim); Sullivan v. McDonald, 815 F.3d 786, 792 (Fed. Cir. 2016) (holding that 38 C.F.R. § 3.159(c)(3) expanded VA’s duty to assist to include obtaining VA medical records without consideration of their relevance). Notably, the Veteran has not waived initial RO consideration of such evidence in accord with 38 C.F.R. § 20.1304(c). Accordingly, the matters must be remanded. In addition, as noted in the May 2018 Board Decision, the Veteran has indicated he suffers from flare-ups of his bilateral knee disabilities. See February 2017 Veteran statement. Such is indicated as well on July 2019 VA knee and lower leg conditions examination. However, July 2019 VA examinations did not provide range of motion estimates for functional loss due to flare-ups without adequate explanation, and therefore do not comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) (the examiner should “estimate the functional loss that would occur during flares.”). In addition, the November 2020 VA examination indicates the Veteran denied flare-ups, but such is inconsistent with the Veteran’s own statements and prior VA examinations and interview. Thus, new examinations are needed on remand. Additionally, because the Veteran’s TDIU claim is inextricably intertwined with the claims remaining on appeal, appellate consideration of entitlement to a TDIU rating is deferred pending resolution of the remaining claims on appeal. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records dated since September 2019, particularly from the Lake Baldwin VA Clinic and Orlando VAMC. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, the nature, extent and severity of his service-connected disabilities and their impact on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Schedule the Veteran for a VA orthopedic and muscles examinations to determine the current severity of his service-connected bilateral knee and left quadriceps disabilities. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. The examiner is asked to address the following: (a) Full range of motion testing must be performed where possible. The joints involved should be tested in (1) active motion, (2) passive motion, (3) in weight-bearing, (4) in nonweight-bearing, and (5) with range of motion of the opposite undamaged joint. Please specify range of motion measurements in all areas outlined above. 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 clearly explain why that is so. (b) Considering the Veteran’s reported history, please also provide an opinion describing functional impairment of the Veteran’s bilateral knee and left quadriceps disabilities due to flare-ups, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. A complete rationale shall be given for all opinions and conclusions expressed. If the examiner indicates the Veteran does not suffer flare-ups of his bilateral knee and left quadriceps disabilities, the examiner must reconcile such finding with the Veteran’s prior statements and VA examinations indicating he does suffer such. See, e.g., February 2017 Veteran statement; July 2019 VA knee and lower leg conditions examination. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Marley, 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.