Citation Nr: 21003676 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 08-28 046 DATE: January 22, 2021 REMANDED Entitlement to a disability rating in excess of 30 percent for limitation of extension of the right knee is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from March 1976 to April 1979. This current matter comes before the Board of Veterans’ Appeals (Board) on appeal from several rating decisions. The Veteran originally requested a hearing before the Board when he submitted his substantive appeal but then withdrew his hearing request in November 2015 correspondence. The Board remanded this appeal for further evidentiary development in December 2015, October 2016, and August 2017, and then denied both issues in May 2018. The Veteran appealed the Board’s denial to the United States Court of Appeals for Veterans Claims (Veterans Court) which then remanded the matter in January 2019 pursuant to a Joint Motion for Partial Remand (Joint Motion). This appeal was again before the Board in July 2019 and March 2020. Increased rating for limitation of extension of the right knee In July 2019, this matter was remanded for an additional VA examination. That VA examination was not accomplished for reasons detailed in the Board’s March 2020 decision. As the March 2020 decision described, an updated examination was required. However, after the March 2020 remand, the examination was still not accomplished, a that time, due to COVID 19 protocols preventing the Veteran from being seen. Consequently, this matter must be remanded in order to obtain an adequate VA examination in compliance with VA’s duty to assist and the previous remand directives from July 2019 and March 2020. TDIU Finally, because a decision on the remanded issue of entitlement to an increased rating for the service-connected right knee disability could significantly impact a decision on the issue of entitlement to a TDIU, both issues are inextricably intertwined with each other. A remand of the TDIU claim is, thus, required. Accordingly, these matters are REMANDED for the following actions: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of the service-connected right knee limitation of extension. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating this disability under the rating criteria. In so doing, the examiner must: a. 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). b. 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). c. opine as to the effect of the Veteran’s service-connected orthopedic disabilities on his ability to obtain, and maintain, gainful employment in light of his educational level and employment history. 2. 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 benefits sought are 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. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Steven H. Johnston, 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.