Citation Nr: 21066187 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 18-04 455 DATE: October 28, 2021 REMANDED Entitlement to an evaluation in excess of 10 percent prior to August 12, 2021, and in excess of 50 percent thereafter for service-connected left knee degenerative joint disease (DJD) based on limitation of flexion (left knee disability) is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to March 4, 2020 is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1973 to December 1984. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). Along with a claim of entitlement for service connection for a right knee disorder, the left knee issue was previously before the Board in May 2019, when it was remanded for further development. In February 2020 the Board denied the claims for the left and right knees, and granted a separate evaluation for left knee DJD based on instability at 10 percent effective the date of the claim. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2021 Joint Motion for Partial Remand (JMPR), the Court vacated the denials of the right and left knee claims, in part because the Board did not address the Veteran's argument that an August 2019 VA examination did not consider range of motion measurements with weight-bearing. These issues returned to the Board in May 2021, when they were remanded for further development. While on remand, in an August 2021 rating decision, service connection for right knee osteoarthritis was granted with a 10 percent evaluation effective March 31, 2016, and a 40 percent evaluation effective August 12, 2021. This represents a full grant of the benefits sought, and this issue is no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). This rating decision also granted a 50 percent evaluation effective August 12, 2021 for the left knee disability. As this does not represent a full grant of the benefits sought, the left knee disability remains on appeal, and the case has since been returned to the Board for appellate review. Additionally, the Board finds that a claim of entitlement to a TDIU has been reasonably raised by the record, and is properly before the Board. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (noting that a claim for a TDIU rating is part of an increased rating claim when such claim is raised by the record). Throughout the appeal period, the Veteran's representative has repeatedly raised a claim to a TDIU, including in the brief accompanying the December 2016 notice of disagreement. In March 2020, the Veteran submitted a formal claim for a TDIU. In a February 2021 rating decision TDIU was granted effective March 4, 2020, the date of the formal claim. The grant of a TDIU for a portion of the period does not bifurcate the appeal from the underlying disability appeal because it only serves as a partial grant; thus, when the agency of original jurisdiction (AOJ) fails to grant the benefit in full (i.e., entitlement to a TDIU for the entire period on appeal), that portion of the claim that remains unresolved is still on appeal. Harper v. Wilkie, 30 Vet. App. 356, 360-62 (2018). Accordingly, a claim of entitlement to a TDIU prior to March 4, 2020 remains on appeal. 1. Entitlement to an evaluation in excess of 10 percent prior to August 12, 2021, and in excess of 50 percent thereafter for service-connected left knee disability is remanded. Remand is required for substantial compliance with the May 2021 Board remand directives. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. The May 2021 Board remand in part directed the examiner to clearly indicate whether and how any medications the Veteran uses affects the severity of the knee condition, and if any such medication is productive of ameliorative effects, to clearly identify such effects and opine as to the severity of the knee condition absent such medication in terms of limitation of ROM if possible. During an August 2021 VA examination the examiner did note that the Veteran treats their knee pain with hydrocodone, Tylenol, cold/heat packs, and knee braces; but they did not address the remand directive requesting that they clearly address the ameliorative effects of the medication. The examiner merely noted that flare-ups are alleviated by the hydrocodone. The remand also in part directed the examiner to provide a retrospective opinion as to the severity of the Veteran's service-connected left knee disability from March 31, 2016 to the present. The examiner did not provide a retrospective opinion. For these reasons, remand is required for a new VA examination. 2. Entitlement to a TDIU prior to March 4, 2020 is remanded. As noted above, a claim of entitlement to a TDIU has been reasonably raised by the record; however, as this claim is inextricably intertwined with the pending left knee disability claim, remand is required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). By this remand the Board makes no determination, expressed or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: 1. Provide the Veteran with an appropriate examination to determine the severity of the service-connected left knee disability. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The relevant Disability Benefits Questionnaire must be utilized. (a) In assessing the functional impacts of repeated use over time and flare-ups, the examiner is asked to: i. Clearly indicate whether any medications the Veteran uses affects the severity of his knee condition. If so, identify each medication and clearly explain how such medication affects such condition. ii. If any such medication is productive of ameliorative affects, clearly identify such effects and opine as to the severity of the knee condition absent such medication. Such severity should be assessed in terms of limitation to ROM, if possible. (Continued on the next page) (b) Provide a RETROSPECTIVE OPINION, utilizing the Veteran's medical records and lay history, and opine as to the severity of the Veteran's service-connected left knee conditions from March 31, 2016, to current. Any impairment, and any additional impairment due to repetitive use over time or flare-ups, should be assessed in terms of limitation to ROM, if possible, and the examiner should state whether such limitation is mild, moderate, or severe in nature. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rogos 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.