Citation Nr: 21064720 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 17-11 773 DATE: October 21, 2021 REMANDED Entitlement to a disability rating greater than 20 percent for left knee disability is remanded. Entitlement to a disability rating greater than 20 percent for right knee disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) for the period prior to July 13, 2015 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1975 to October 1978 and May 1979 to May 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July and October 2015 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). It was previously before the Board in November 2019 at which time the Veteran's 20 percent disability rating was reinstated for disability of both the left and right knee. There was a July 2019 Board hearing before the undersigned Veterans Law Judge (VLJ) and the transcript is of record. 1. Entitlement to a disability rating greater than 20 percent for left knee disability is remanded. The Veteran was afforded an in-person VA examination to assess the current severity of his left knee disability on December 31, 2020. However, that examination report and opinion noted contradictory ranges of motion. While an addendum attempting to address the discrepancies was associated with the record, it does not include any note or documentation addressing how the examiner recalled the appropriate range of motion after-the-fact and without examining the Veteran again. See 1/22/2021 C&P Examination. For that reason, remand is needed to obtain a new VA examination. 2. Entitlement to a disability rating greater than 20 percent for right knee disability is remanded. Remand is needed to obtain a VA examination for the right knee disability for the same reasons discussed for the left knee disability. 3. Entitlement to a TDIU prior to July 13, 2015 is remanded. A TDIU may be assigned where the schedular rating is less than total, when the Veteran is, in the judgement of the rating agency, unable to secure or follow a substantially gainful occupation consistent with his education, training, and work experience as a result of service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Neither the Veteran's age nor nonservice-connected impairment may be considered. 38 C.F.R. §§ 3.341, 4.16a, 4.19. If there is only one service-connected disability, that disability must be ratable at 60 percent or more. 38 C.F.R. § 4.16(a). If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Id. Prior to July 13, 2015 none of the Veteran's disabilities were rated at 60 percent or more and his combined rating was less than 70 percent. Therefore, as the record currently stands, the Veteran did not meet the schedular rating to be considered for TDIU prior to July 13, 2015. However, because the evidence indicates that the Veteran stopped working in September 2014 and his disability ratings for both knees is being remanded to consider higher ratings, the possibility that he meets the schedular rating earlier remains. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Thus, the Veteran's claim for TDIU must be remanded due to its being inextricably intertwined with his pending claim for increased ratings for his right and left knee disabilities. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to assess the current nature and severity of his service-connected knee disabilities. Range of motion should be reported, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in functional loss. (a.) Based upon a review of the medical records, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during the examination, state whether the Veteran experiences flare-ups of his service-connected knee disability, and how he or she characterizes the additional functional loss during a flare. (b.) If the Veteran describes experiencing flare-ups, identify the: i. frequency; ii. duration; iii. precipitating factors; and iv. alleviating factors. (c.) Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that during a flare-up range of motion is additionally limited to 15 degrees of flexion and/or 20 degrees of extension. Please explain why or why not. (d.) Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that repetitive use over time additionally limits motion to 15 degrees or less (for flexion) or 20degrees or more (for extension). Please explain why or why not. (e.) Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that during a flare up the disability is manifested by effusion and/or locking. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner).If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sloley, 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.