Citation Nr: 21063223 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 10-41 312 DATE: October 13, 2021 REMANDED Entitlement to an initial disability rating in excess of 10 percent prior to November 25, 2020 for right knee meniscectomy residuals and in excess of 30 percent thereafter is remanded. Entitlement to a disability rating in excess of 10 percent for right knee instability 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 U.S. Army from August 1987 to June 1997 and from November 1998 to November 2008. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) regional office (RO), which, in pertinent part, declined to award an initial disability rating in excess of 10 percent for the Veteran's right knee disability. The Veteran timely appealed to the Board and, in August 2017, the Board remanded the issue for additional development. Once the requested development was completed, the issue was returned to the Board for adjudication. In November 2018, the Board issued a decision denying the Veteran's claim. The Veteran timely appealed the Board's denial to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to a January 2020 Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the portion of the Board's November 2018 decision pertaining to an increased rating for the Veteran's right knee. The Board remanded the matter for additional development in July 2020 and again in June 2021. As a result of the additional development requested in July 2020, a rating decision was issued in January 2021 which increased the Veteran's right knee disability rating to 30 percent, effective November 25, 2020, and awarded a separate 10 percent disability rating for right knee anterior, posterior, medial, and lateral instability, effective November 25, 2020 as well. Although the Board sincerely regrets further delay, another remand is necessary to afford the Veteran every possible consideration and to ensure substantial compliance with the Board's previous remand directives. Additionally, throughout the appeal period, the Veteran has maintained that he has had difficulties with employment due to his service-connected right knee disability. At the Veteran's most recent VA examination, the examiner noted that the Veteran's service-connected right knee disabilities adversely impact his ability to work due to limitations on standing, sitting, walking, lifting/carrying, squatting, kneeling, or running due to pain. Thus, the Board finds that the issue of entitlement to a TDIU has been reasonably raised by the record and has been added to appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453, 54 (2009) (holding that a request for a TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation); see also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (holding that a separate, formal claim is not required in cases where an informal claim for TDIU has been reasonably raised). 1. Entitlement to an initial disability rating in excess of 10 percent prior to November 25, 2020 for right knee meniscectomy residuals and in excess of 30 percent thereafter is remanded. The Board requested a retrospective opinion concerning the characteristics and severity of the Veteran's right knee disability since 2008. However, the received VA medical opinion was inadequate. The examiner merely stated that the Veteran's disability had been worsening since 2008. More specific information is necessary for decisional purposes. 2. Entitlement to a disability rating in excess of 10 percent for right knee instability is remanded. The Veteran was granted service connection for right knee instability in a January 2021 rating decision issued during the appeal. The Board notes that examining the Veteran's right knee symptomatology since 2008 necessarily involves determining the onset and severity of his right knee instability. As such, this issue is inextricably intertwined with that which is described in the previous section. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (providing that two or more issues are inextricably intertwined if one claim could have significant impact on the other). Accordingly, this issue is remanded for readjudication following further evidentiary development. 3. Entitlement to a TDIU is remanded. There is evidence of record indicating that the Veteran may be precluded from employment due to his service-connected right knee disabilities. On remand, the RO should undertake any development necessary to adjudicate a claim for entitlement to a TDIU. The matters are REMANDED for the following action: 1. Utilizing the Veteran's medical records and lay reports concerning the history of his right knee symptoms and impairment, an appropriate clinician must provide a retrospective opinion regarding the frequency, duration, characteristics, severity, and functional loss with any repetitive use or during any flare-ups of the Veteran's right and left knee disabilities from 2008 to November 2020 (the date of the most recent, adequate VA examination). Any impairment should be assessed in terms of limitation to ROM, including on (1) active motion, (2) passive motion, (3) in weightbearing, and (4) in non-weightbearing. Specifically, the examiner(s) should, to the extent possible and considering all procurable and ascertainable data, provide estimates of the additional functional loss to the Veteran's right knee from flare-ups or after repeated use over time from 2008 through November 25, 2020. The examiner(s) must provide a comprehensive report including complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner(s), a reason for doing so must be provided. All examination findings, along with the complete explanation for all opinions expressed, must be set forth in the examination report. If it is not possible to provide a specific measurement, or an opinion regarding repetitive use or flare-ups, symptoms, or functional impairment without speculation, the examiner(s) must provide a rationale for this conclusion, with specific consideration to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner(s) must include a discussion of any specific facts that cannot be determined and 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). See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). 2. Provide the Veteran appropriate notice in connection with the claim for a TDIU. The Veteran should be requested to complete and submit an Application for Increased Compensation based on Unemployability (VA Form 21-8940), and the RO should undertake all further appropriate actions for development of the claim. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Bush 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.