Citation Nr: 21004931 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 18-44 486 DATE: January 28, 2021 REMANDED Entitlement to a rating in excess of 10 percent for a right knee meniscus tear status post surgery is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from April 1994 to November 2000. These matters are on appeal from a March 2015 rating decision. In a June 2019 decision, the Board denied the Veteran’s right knee claim. The Veteran appealed the Board’s decision to the Court of Appeals for Veterans Claims (Court). In a Joint Motion for Remand (JMR), the parties agreed to vacate the Board’s decision and remand the case to the Board for additional development because the Board did not provide an adequate statement of reasons or bases for its decision. The JMR was incorporated by reference in a Court order dated in June 2020. 1. Entitlement to a rating in excess of 10 percent for a right knee meniscus tear status post surgery is remanded. ]In their JMR, the parties before the Court expressed concern as to whether the February 2019 VA examiner’s findings were consistent with the lay statements of record regarding knee instability and regarding the functional impact of flare ups and pain over time. In the interest of giving the Veteran the full benefit of the doubt, the Board finds that a remand for a new examination is warranted. 2. Entitlement to a TDIU is remanded. The Veteran has submitted a January 2015 statement by his spouse in which she reported that the Veteran was having difficulty finding a job due to his knee symptoms. She added that the “work he knows how to do is hard on his knees” and that “[n]obody wants to hire him because of his knee problems.” Because the record raises the possibility that the Veteran might be unemployable as a result of his service-connected disabilities, the issue of entitlement to a TDIU has been raised in connection with the claim on appeal for an increased rating for a right knee meniscus tear status post surgery. See Rice v. Shinseki, 22 Vet. App. 447 (2009); 38 C.F.R. § 4.16(a) (2020). The issue of the Veteran’s entitlement to a TDIU is inextricably intertwined with the right knee claim. Therefore, the Agency of Original Jurisdiction (AOJ) should develop a claim for a TDIU. The matters are REMANDED for the following action: 1. Provide the Veteran and his representative with notice concerning how to substantiate the claim for a TDIU, to include providing him with a VA Form 21-8940. 2. Arrange for the Veteran to have an examination by an appropriate clinician who has not previously examined him for the purpose of determining the current severity of his service-connected right knee disability. The claims file must be made available to the clinician for review. The clinician is to provide a detailed review of the Veteran’s pertinent medical history, current complaints, and the nature and extent of any symptoms of his service-connected right knee disability. The clinician must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the clinician should identify any symptoms and functional impairments due to the service-connected right knee disability alone and discuss the effect of the Veteran’s service-connected right knee disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the clinician 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 the clinician is unable to provide such an opinion without resort to speculation, the clinician 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 clinician must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. The clinician is advised that a statement that the examination did not take place during a flare-up or after repetitive use over time is not a sufficient rationale for inability to provide an opinion. Although an independent review of the claims file is required, the Board calls the clinician’s attention to the following: a. The Veteran’s report during the December 2014 VA examination of his knee giving way and of the nature of his flare ups. b. The Veteran’s spouse’s January 2015 statement regarding the Veteran’s symptoms and their functional impact. c. A July 2014 VA treatment record noting patella laxity. d. The Veteran’s statements in his August 2018 substantive appeal (VA Form 9) regarding his symptoms. e. The Veteran’s report during the February 2019 VA examination of his knee giving way and of the nature of his flare ups. 3. Ensure that the directives specified in this remand have been implemented. If they have not, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). (Continued on the next page)   4. Then, readjudicate the claims, including the TDIU claim. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. A. Rocktashel Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ryan Frank, 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.