Citation Nr: 21003169 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 17-05 594 DATE: January 19, 2021 REMANDED Entitlement to a rating in excess of 20 percent for degenerative joint disease of the lumbosacral spine is remanded. Entitlement to a rating in excess of 10 percent for degenerative arthritis of the right knee is remanded. Entitlement to a rating in excess of 10 percent disabling for degenerative arthritis of the left knee is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1983 to April 1986. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in September 2020. A transcript of the hearing is associated with the Veteran’s claims folder. 1. Entitlement to a rating in excess of 20 percent for degenerative joint disease of the lumbosacral spine is remanded. 2. Entitlement to a rating in excess of 10 percent for degenerative arthritis of the right knee is remanded. 3. Entitlement to a rating in excess of 10 percent disabling for degenerative arthritis of the left knee is remanded. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Upon review of the claims file, the Board has determined that further development is necessary before the claim can be adjudicated. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board notes that the Veteran’s VA treatment records have not been updated since November 2016. Any VA treatment records are within VA’s constructive possession and are considered potentially relevant to the issues on appeal. Additionally, during a September 2020 Board hearing, the Veteran asserted that his back and bilateral knee disabilities have increased in severity since the Veteran was last examined by VA in November 2016. (9/9/2020, Hearing Transcript, p. 3). He should therefore be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his back and bilateral knee disabilities. Finally, the Veteran raised the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) in a January 2019 statement. (2/11/2019, Congressional, p. 3). The Board finds that because a decision on the remanded issues of entitlement to increased ratings for degenerative joint disease of the lumbosacral spine and bilateral degenerative arthritis of the knees could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. Therefore, a remand of the claim of entitlement to a TDIU is required. In rendering this decision, the Board acknowledges that the Veteran’s service-connected disabilities do not meet the schedular requirements for TDIU under 38 C.F.R. § 4.16(a). Generally, when a veteran’s service-connected disabilities do not meet the schedular requirements for TDIU, the claim is referred to VA’s Director of Compensation Service for extraschedular consideration. In the present case, however, the Veteran’s claim for an extraschedular TDIU has previously been considered by the Director of Compensation Service. (9/3/2013, VA Memo, p. 1). Therefore, a referral is not necessary in the present case. Based on the aforementioned, the Board finds that the claims must be remanded for further medical development. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran’s disabilities from November 2016 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected degenerative joint disease of the lumbosacral spine. 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. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral degenerative arthritis of the knees. 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. 4. In determining the current severity of the Veteran’s degenerative joint disease of the lumbosacral spine and bilateral degenerative arthritis of the knees, the examiners must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. 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. The examiners must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record 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. 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Glenn, 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.