Citation Nr: 21065924 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 15-23 404 DATE: October 27, 2021 REMANDED Entitlement to an increased rating in excess of 10 percent for right knee osteoarthritis with cartilage degeneration is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1969 to July 1973. The Veteran appealed a February 2014 rating decision by the Agency of Original Jurisdiction (AOJ). This case was previously before the Board, most recently in November 2020, and remanded for additional development. As such, the case has returned to the Board for further appellate proceedings. However, as explained below, the Board finds that another remand is necessary in order to provide the Veteran with an adequate examination and comply with the Board's prior remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A Board hearing was held in October 2018. A transcript is of record. 1. Right Knee In November 2020, the Board remanded this case for a new knee examination to comply with the prior remand directives from the February 2019 Board decision. Specifically, the VA examiner was to attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups, to include flare-ups during weather changes. See November 2020 Board remand directives. The Veteran attended a VA examination in February 2021. Here, the Veteran reported flare-ups of his right knee. He described the impact as difficulty sitting in a car for a long period of time because the knee will flare-up in pain, yard work is hard to complete, he can no longer stand still due to the pressure placed on the knees and cannot lift things that are greater than ten pounds because of the pressure. See February 2021 VA examination report. The Veteran indicated that flares occur two to three times per week, with pain ranging from an 8-10/10. Id. Notably, there was no discussion of flare-ups during weather changes as required by the November 2020 Board remand. Subsequently, the Veteran attended a June 2021 VA examination. The June 2021 VA examiner checked the box indicating that the Veteran did not report he suffered from flare-ups. See June 2021 VA examination report. Again, there was no further explanation or discussion of weather changes as directed by the Board in the November 2020 remand. This report of no flares whatsoever is a stark contrast from the findings of the February 2021 examination conducted just months prior. Therefore, it does not appear as if the June 2021 VA examiner elicited sufficient information regarding the Veteran's condition. See Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017). As such, a new VA examination is required that appropriately addresses flare-ups. Moreover, remand is also required as the Board finds there has not been substantial compliance with its remand directives; both the February 2021 and the June 2021 VA examiners did not discuss weather changes in relation to flare-ups in accordance with the November 2020 Board 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 substantial compliance). 2. TDIU Because a decision on the remanded issue could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. A remand of the claim for entitlement to TDIU is required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his right knee condition that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. Thereafter, schedule the Veteran for an examination of the current severity of his right knee condition. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing (if applicable). 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, to include flare-ups during weather changes. The examiner should identify any symptoms and functional impairments due to the Veteran's condition and discuss the effect of the Veteran's condition on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups (including during weather changes), symptoms, or functional impairment 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). 3. After the above development has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board, if otherwise in order. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Katie Poe, 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.