Citation Nr: 21062554 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 15-40 474 DATE: October 7, 2021 REMANDED Entitlement to an increased rating for medial and lateral meniscal tears of the left knee joint with associated semimembranosus sprain (claimed as left knee condition) is remanded. Entitlement to an increased rating for left knee meniscal tear associated with medial and lateral meniscal tears of the left knee joint with associated semimembranosus sprain (claimed as left knee condition) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected conditions prior to March 19, 2018, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1959 to May 1963. These matters come to the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO) in Guaynabo, Puerto Rico. By way of background, this case has a significant procedural history including multiple Board remands and decisions, most recent of which was in June 2020 when the Board denied an initial rating in excess of 10 percent for medial and lateral meniscal tears of the left knee, granted a separate 20 percent disability rating for left knee meniscal tear associated with medial and lateral meniscal tears of the left knee, and denied an initial compensable disability rating for bilateral hearing loss. Thereafter, the Veteran appealed to the U.S. Court of Appeals for Veterans Claims (CAVC or "the Court") and, in April 2021, the parties agreed to a Joint Motion for Partial Remand (JMPR) to vacate and remand the Board's June 2020 decision for further development. In May 2021, the Court granted the JMPR, and the matters now return to the Board for further consideration consistent with the terms of the JMPR. The Board notes the Veteran did not challenge the Board's decision regarding denial of a compensable disability rating for bilateral hearing loss. Thus, this issue was considered abandoned and will not be addressed herein. In accordance with the JMPR, the left knee increased rating claims are now being remanded for additional development. The issue of entitlement to TDIU prior to March 19, 2018, is addressed in more detail below. 1. Entitlement to an increased rating for medial and lateral meniscal tears of the left knee joint with associated semimembranosus sprain (claimed as left knee condition) is remanded. 2. Entitlement to an increased rating for left knee meniscal tear associated with medial and lateral meniscal tears of the left knee joint with associated semimembranosus sprain (claimed as left knee condition) is remanded. The Veteran has a left knee condition that is currently rated under both Diagnostic Code (DC) 5258 and DC 5260 for which she seeks an increased rating. In accordance with the terms of the parties' JMPR, the Board finds remand is necessary to afford the Veteran further VA examination of her left knee disability. The Veteran has been afforded multiple VA examinations to determine the severity of her left knee condition including in 2011, 2018, and 2020 based upon which the Board issued the June 2020 decision. The March 2011 VA examiner opined that the Veteran experienced objective evidence of pain following repetitive use, but there were no additional limitations after repetitive use. As observed in the JMPR, the parties agreed the March 2011 VA examiner failed to address whether there was functional loss due to repeated use over time or provide a range of motion (ROM) loss estimate due to functional loss. As indicated in the JMPR, the 2018 VA examiner found that while flare-ups were experienced, additional ROM loss during flare-ups could not be estimated due to lack of observation. The Board finds remand is necessary as the examiner did not provide a sufficient rationale as to why estimating ROM during flare-ups would require mere speculation in light of the Veteran's reported functional loss / impairment during flare-ups. Lastly, the parties agreed within the JMPR that none of the VA examinations of record considered ROM measurements with active and passive ROM and with and without weight bearing. Accordingly, to ensure compliance with both Sharp and Correia, the Board finds remand is necessary to afford the Veteran another VA examination. The Board further notes, upon return to the Board after the additionally directed development herein, consideration will be given to all applicable Diagnostic Codes. 3. Entitlement to TDIU due to service-connected conditions prior to March 19, 2018, is remanded. While the Veteran has been granted TDIU from March 19, 2018, based on the Veteran's application for TDIU, the JMPR tasks the Board with deciding whether TDIU was reasonably raised from the record in association with the Veteran's increased rating claim for the left knee. Upon review, the Board finds the issue of TDIU was reasonably raised from the evidentiary record and is within the jurisdiction of the Board. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). Specifically, the March 2018 VA examiner opined that the Veteran's functional ability to perform occupational tasks is limited to sedentary or semi-sedentary type activities with an inability to participate in high impact activities. Additionally, the record contains evidence that the Veteran is unemployed at least in part due to physical problems stemming from his left knee. In particular, the March 2011 VA examination noted the Veteran is unemployed due to physical problems including left knee pain having a "significant" effect on occupation. Accordingly, the Board finds TDIU is part of the underlying increased rating claim addressed herein. The Board finds the Veteran's inferred TDIU claim prior to March 19, 2018, is inextricably intertwined with the increased rating claim for the left knee being remanded here and, therefore, must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected left knee disability. 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. In so doing, the examiner 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 examiner 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 as well as with repetitive use over time. 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). 2. After the above development, and any other development deemed necessary, readjudicate the claims, including the TDIU claim prior to March 19, 2018, remanded here in as inextricably intertwined. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.C. Allen, 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.