Citation Nr: 21004352 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 17-00 701 DATE: January 26, 2021 REMANDED Entitlement to a rating in excess of 20 percent for right knee instability is remanded. Entitlement to a rating in excess of 10 percent fora right knee lost flexion is remanded. Entitlement to a rating in excess of 10 percent for a skin disability of the hands and feet is remanded. Entitlement to a total rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service with the United States Army from May 1997 to August 1999. In May 2019, the Veteran had a hearing before the undersigned Veterans Law Judge in May 2019. A transcript has been associated with the file. In September 2019, the Board of Veterans’ Appeal (Board) issued a decision that granted the Veteran a separate 20 percent rating for right knee instability and denied ratings in excess of 10 percent for right knee lost flexion and for a skin disability of the hands and feet. The Veteran appealed the September 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2020 order, which incorporated the parties Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the September 2019 Board decision to the extent that it denied ratings in excess of 20 percent rating for right knee instability and in excess of 10 percent for right knee lost flexion and for a skin disability of the hands and feet. Lastly, given the Veteran’s May 2019 personal hearing testimony the Board finds that the record raises a claim for a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a rating in excess of 20 percent for right knee instability, in excess of 10 percent for right knee lost flexion, in excess of 10 percent for a skin disability of the hands and feet are remanded. The JMPR vacated and remanded the September 2019 Board decision for the following reasons: i. while at the May 2019 hearing the Veteran testified that there had been a worsening of his right knee instability since his last VA examination, the Board adjudicated the claim without providing him with a new VA examination (see Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995)); ii. the March 2014 VA examination was not adequate to adjudicate the claim for an increased rating for right knee lost flexion because the examiner did not provide range of motion that complied with the Court’s holding in Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016) (see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007)); and iii. while the Veteran at the May 2019 personal hearing identified VA treatment records (i.e., treatment records surrounding an upcoming August 2019 appointment with his primary care physician), the Board adjudicated the appeal without first attempting ot obtain and associate these records with the claims file (see Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992)). Therefore, the Board finds that a Remand is required to provide the Veteran with new VA examinations as well as to obtain and associate with the record the outstanding medical records. See 38 U.S.C. § 5103A(b), (d); Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Green v. Derwinski, 1 Vet. App. 121 (1991) (holding that VA’s duty to assist includes conducting a thorough and contemporaneous examination of the veteran that considers records of prior examinations and treatment). Entitlement to a TDIU is remanded. As noted above, the record raises a claim for a TDIU. See Rice, supra. However, the Board finds that this issue is not ready for appellate review because it is inextricably intertwined with the above remanded rating claims (see Harris v. Derwinski, 1 Vet. App. 180, 183 (1991)) as well as because from the existing record the Board is not able to ascertain when, if ever, they prevented him from obtain and maintaining substantial gainful employment. See 38 C.F.R. § 4.16, Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the regional office). Therefore, the Board finds that a remand is required to obtain from the Veteran a fully executed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, so the Board has the needed information to adjudicate whether his service-connected disabilities prevent him from obtain and maintaining substantial gainful employment given his prior vocational history, work experience, and education. See 38 U.S.C. § 5103A(b). The appeal is REMANDED for the following actions: 1. Associate with the claims file any outstanding VA treatment records including the records from the Veteran’s August 2019 appointment with his primary care physician, if available. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran’s representative should submit any new pertinent evidence that the Board does not have. This would greatly help the Board. 3. Obtain and associate with the claims file a fully executed VA Form 21-8940. In this regard, the request should include a request for the Veteran to provide a detailed statement as to his employment history since service along with his duties at those places of employment, whether he continues to be unemployed, the approximate date he stopped working full and part time, and how his service-connected disabilities prevents him from obtaining and maintaining substantial gainful employment in both fields that are sedentary and physically demanding. Any help from the Veteran in obtaining this information would be appreciated. The form cited above is available on-line. The request should also notify the Veteran that his claim for a TDIU can be denied if he fails to cooperate with the prosecution of the claim by providing at the VA Form 21-8940. 4. In order to comply with the JMPR, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the severity of his right knee instability and lost flexion. The claims folder should be made available to and reviewed by the examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to address the following: (a) The examiner should identify all right knee pathology found to be present. (b) The examiner should conduct all indicated tests and studies, to include range of motion studies. The joint involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. In order to comply with the JMPR, the examiner should provide range of motion estimates in both active and passive motion, in weight-bearing and non-weight-bearing based on the evidence of record. (c) The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. (d) The examiner should also state whether the examination is taking place during a period of flare-up. If it is, the examiner should provide range of motion estimates in both active and passive motion, in weight-bearing and non-weight-bearing during the flare-up. If it is not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited right knee forward flexion and backward extension caused by functional loss during a flare-up and after repeated use over time. If the examiner cannot provide the range of motion estimate during flare-ups for each of the required time periods without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). (e) The examiner should also state the nature, extent, and severity of the right knee instability. In providing the opinions, the examiner should consider the Veteran’s competent lay claims regarding observable symptomatology. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 5. Schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the severity of his skin disability of the hands and feet. The claims folder should be made available to and reviewed by the examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to identify all pathology found to be present. In providing the opinions, the examiner should consider the Veteran’s competent lay claims regarding observable symptomatology. The examination report must include a complete rationale for all opinions expressed. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.