Citation Nr: 21064265 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 16-23 892 DATE: October 19, 2021 REMANDED Entitlement to staged ratings (in excess of 10 percent prior to November 13, 2019, and in excess of 20 percent thereafter) for a left knee disability is remanded. Entitlement to staged ratings (in excess of 10 percent prior to November 13, 2019, and in excess of 20 percent thereafter) for a right knee disability is remanded. Entitlement to staged ratings (in excess of 10 percent prior to November 13, 2019, and in excess of 20 percent thereafter) for a cervical spine disability 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 United States Army from September 1989 to December 2009, with service in the Persian Gulf February 2004 to January 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision by the Decatur, Georgia Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in September 2018 and April 2021 when they were remanded for additional development. 1. Entitlement to staged ratings (in excess of 10 percent prior to November 13, 2019, and in excess of 20 percent thereafter) for a left knee disability is remanded. 2. Entitlement to staged ratings (in excess of 10 percent prior to November 13, 2019, and in excess of 20 percent thereafter) for a right knee disability is remanded. 3. Entitlement to staged ratings (in excess of 10 percent prior to November 13, 2019, and in excess of 20 percent thereafter) for a cervical spine disability is remanded. Pursuant to the Board's April 2021 remand directives, the Veteran was afforded VA knee and neck examinations in June 2021. The June 2021 VA examinations are inadequate as the examiner noted pain that caused functional loss with flexion and extension of the knees and bending, flexion, extension, and rotation of the neck, but failed to provide range of motion measurements as to where pain begins in the knees and neck with flexion, extension, and rotation. See 38 C.F.R. §§ 4.40, 4.45. Accordingly, new examinations with a different examiner are warranted. 4. Entitlement to TDIU is remanded. In the April 2021 Board Remand, it was noted the Veteran last submitted a VA Form 21-8940 (Veterans Application for increased Compensation Based on Unemployability) in 2012, at which time he indicated he last worked full time in July 2011. However, a November 2019 VA examination indicated the Veteran may be working full time as an automotive mechanic. In April 2021, VA sent the Veteran a correspondence requesting that he provide an updated VA Form 21-8940 describing his work history from November 2012 through present, but the Veteran did not provide the requested information. On remand, the Veteran should be provided another opportunity to submit an updated VA Form 21-8940. The RO should advise him that failure to do so may result in the denial of his claim. See 38 C.F.R. § 3.158(a). The matters are REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature, extent and severity of his service-connected disabilities and the impact of the conditions on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Contact the Veteran and request that he must complete and return an Application for Increased Compensation Based on Unemployability, VA Form 21-8940, identifying his previous employment since 2012, and when he was last gainfully employed. The Veteran should also be notified that under 38 C.F.R. § 3.158(a) his claim for TDIU may be considered abandoned if he fails to cooperate by providing the completed VA Form 21-8940. 3. Contact the Veteran and request that he identify any and all outstanding VA and private treatment records. After obtaining the necessary authorization forms from the Veteran, obtain any pertinent records and associate them with the claims file. 4. Schedule the Veteran for VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) with an examiner other than the June 2021 examiner to address the current nature and severity of his service-connected right and left knee and cervical spine disabilities. The examiner is asked to address the following: (a.) Based on an interview with the Veteran, examination, review of the record, and any tests or studies deemed necessary, the examiner should describe frequency, severity, and functional impairment associated with the Veteran's left and right knee and cervical spine disabilities (b.) The examiner must complete range of motion studies using a goniometer that include the Veteran's active motion, passive motion, pain with weight-bearing and without weight-bearing for both knees and cervical spine. The examiner should also note any further functional limitations due to pain, weakness, fatigue, lack of endurance, incoordination, or any other symptom resulting in functional loss. If the examiner is unable to conduct such testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (c.) Attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and after repetitive use over time. If feasible, the examiner must assess the additional functional impairment on repeated use over time and during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, 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 Board notes that the lack of opportunity to observe during a flare-up and/or after repeated use over time is an insufficient basis for not estimating the functional effects in terms of degrees of range of motion. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Straughn, 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.