Citation Nr: 21065222 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 15-25 890 DATE: October 25, 2021 REMANDED A rating higher than 10 percent for a left wrist strain is remanded. A rating higher than 10 percent prior to April 21, 2014, higher than 20 percent from April 21, 2014, to April 22, 2015, and higher than 60 percent as of June 1, 2016, for left knee degenerative joint disease (DJD), and a left knee replacement is remanded. A compensable rating prior to November 16, 2016, higher than 30 percent from January 1, 2017, and higher than 60 percent as of November 25, 2019, for right knee degenerative joint disease (DJD) and a right knee replacement is remanded. A rating higher than 10 percent prior to April 20, 2021, and higher than 20 percent thereafter for degenerative joint disease of the lumbar spine is remanded. A rating higher than 10 percent for left lower extremity radiculopathy is remanded. A rating higher than 10 percent for right lower extremity radiculopathy is remanded. 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 from November 1971 to November 1973. The Veteran has sought higher ratings for his claimed conditions specifically stating in Informal Hearing Presentations (IHPs) that his reported flare-ups make his service connected disabilities more severe than indicated. See November 2020 and August 2021 IHPs. The Board sincerely regrets the additional delay. However, as with the examinations performed in 2019, the 2021 examinations did not comply with prior remand instructions and did not accurately depict the Veteran's consistent reports and treatment for flare-ups. Though the Board notes that an addendum report was made to the 2021 examinations, this report also did not comply with the remand instructions and was not able to adequately reflect the impairment caused by the Veteran's flare-ups as the addendum was not an in-person examination. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Further, because a decision on the remanded increased rating claim for the Veteran's low back could significantly impact a decision on the issues of an increased rating for right and left lower extremity radiculopathy, these issues are inextricably intertwined. A remand of the claims for an increased rating for right and left lower extremity radiculopathy is warranted. Finally, because a decision on the remanded increased rating claims could significantly impact a decision on the issue of entitlement to a TDIU, these issues are also inextricably intertwined. A remand of the claim for entitlement to a TDIU is required, The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left wrist sprain, right and left knee disabilities and low back 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: a. attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. 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. (Continued on the next page) b. provide a retrospective medical opinion regarding the Veteran's historical reports of flare ups of his left wrist, right and left knee and low back. The Veteran has consistently reported, and treatment records note ongoing flare ups. 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). JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Parrish, 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.