Citation Nr: 21066701 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 16-45 450 DATE: November 1, 2021 REMANDED Entitlement to an initial disability rating in excess of 10 percent for right knee patellofemoral syndrome is remanded. Entitlement to an initial disability rating in excess of 10 percent for left knee patellofemoral syndrome is remanded. Entitlement to a total disability rating based on individual unemployability is remanded. REASONS FOR REMAND The Veteran served on active duty from October 2000 to February 2001. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a December 2020 decision, the Board denied the claims for increased bilateral knee disability ratings and for a total disability evaluation based on individual unemployability (TDIU). The Veteran appealed the Board's December 2020 decision to the United States Court of Appeals for Veterans Claims (Court), which issued an Order in July 2021 granting a July 2021 Joint Motion for Remand (JMR). The Court's Order vacated and remanded the Board's decision denying the increased bilateral knee disability ratings and a TDIU for action consistent with the terms of the JMR. As a preliminary matter, the Board notes that over the course of the rather complex and lengthy procedural history in this case, the increased rating claims were previously remanded by the Board in November 2018 for a new VA examination to determine the current extent of the Veteran's right and left knee disabilities, and for the RO to contact the Veteran and attempt to obtain any relevant, outstanding private and/or VA treatment records. The Board finds that there has been substantial compliance with the November 2018 remand instructions. See D'Aries v. Peake, 22 Vet. App. 97 (2008); see also Stegall v. West, 11 Vet. App. 268 (1998). In this regard, the Veteran was afforded a VA knee examination in October 2019, and in April 2019, the RO mailed a request (VA request letter) to the Veteran for information and any necessary releases to obtain identified relevant, outstanding private and/or VA medical treatment records. At that time the April 2019 VA request letter was mailed, the Veteran's last address of record in Texas was used. See also a January 2019 VA summary of benefits letter and the November 2018 BVA decision, which contain the same address. There is a presumption of regularity that VA properly discharged official duties by mailing a copy of a VA decision to the last known address of the claimant and the claimant's representative, if any, on the date that the decision is issued. See Woods v. Gober, 14 Vet. App. 214, 220-21 (2000); see also Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (applying the presumption of regularity to official duties of the RO). The claimant may rebut that presumption by submitting "clear evidence to the effect that VA's regular mailing practices are not regular or that they were not followed. See generally, Crumlich v. Wilkie, 31 Vet. App. 194 (2019). The burden then shifts to the Secretary to establish that the VA decision was mailed to the claimant." See Ashley v. Derwinski, 2 Vet. App. 307, 309 (1992). Absent evidence that the claimant notified VA of a change of address, VA failed to properly discharge its duties, and absent evidence that any notice sent to the claimant at her last known address has been returned as undeliverable, VA is entitled to rely on that address. See Cross v. Brown, 9 Vet. App. 18, 19 (1996); Crumlich, supra. Here, the Veteran has not shown that she notified VA of a change of address which would affect the April 2019 VA request letter. In fact, the record does not indicate why the Veteran's address of record was changed, but the record does reflect that by October 2019, her address of record was changed to Colorado, and that at the time of this decision, it has changed to Georgia. Further, there is no indication that the April 2019 request letter was returned as undeliverable. Thus, the Agency of Original Jurisdiction (AOJ) was entitled to rely on that address as being the Veteran's last known address. Cross, 9 Vet. App. at 19. In light of the need for further development to adjudicate her claims and thus maintain correspondence with the Veteran, particularly as the Board recognizes the Veteran proceeds pro se, the Veteran is reminded that it is her responsibility to keep VA informed of her current address. Under Rice v. Shinseki, the Board has jurisdiction over a total disability rating based on individual unemployability (TDIU) claim as part and parcel of the Veteran's increased rating claim if raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, is part of a claim for increased compensation). 1. Entitlement to an initial disability rating in excess of 10 percent for right knee patellofemoral syndrome 2. Entitlement to an initial disability rating in excess of 10 percent for left knee patellofemoral syndrome 3. Entitlement to a TDIU While the Board regrets further delay, a remand is needed for additional development. This is necessary to ensure that the Veteran is afforded every possible consideration and that there is a complete record upon which to decide her appeal. In correspondence dated in June 2020, the Veteran stated that her bilateral knee disabilities have increased in severity since the October 2019 VA knee examination. Accordingly, a contemporaneous VA examination is needed to properly assess the current severity of these conditions. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Additionally, the Board notes that the October 2019 VA examiner did not find that the Veteran had any meniscal conditions. However, October 2018 private medical treatment records show that a right knee MRI noted mild myxoid degeneration in the medial and lateral meniscal bodies, and that a left knee MRI noted medial meniscal myxoid degeneration with no evidence of meniscal tear. A January 2011 private treatment record shows that a left knee MRI noted mild intrasubstance degeneration in the posterior horn of the medial meniscus. The Board finds that the examiner needs to address these MRIs and clarify whether there are any meniscal conditions. The Board notes that the January 2011 private treatment record noted that the Veteran was evaluated at VA for possible meniscal tear, but there are very few VA treatment records of record. On remand, the RO should obtain any outstanding, relevant VA treatment records. Lastly, the claim for entitlement to a TDIU is inextricably intertwined with the remanded claims for increased bilateral knee disability ratings. Therefore, the Board will not now issue a decision on this claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The matters are REMANDED for the following action: 1. Obtain any relevant, outstanding VA treatment records pertinent to the Veteran's claims for increased right and left knee disability ratings and associate them to the claims file, in particular those referenced in a private medical treatment record dated January 13, 2011 that notes the Veteran was evaluated at the VA for possible meniscal tear. If no such records exist, the claims file should be annotated to reflect as such and the Veteran notified as such. 2. With the Veteran's assistance, obtain any relevant, outstanding private treatment records pertinent to the Veteran's claims for increased right and left knee disability ratings. All reasonable attempts to obtain such records should be made and documented. If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 3. After the above development has been completed to the extent possible, schedule a knee examination to determine the current severity of the Veteran's bilateral knee patellofemoral syndrome. The claims file, to include a copy of this Remand, must be made available to and reviewed by the examiner. The examiner should note such review was conducted. The examiner should provide full descriptions of the Veteran's right and left knee disabilities and report all signs and symptoms necessary for evaluating these disabilities under the rating criteria. Range of motion measurements should be included for active and passive motion in both weight-bearing and non-weight-bearing circumstances. If pain is noted, the point in the range of motion at which pain starts should be clearly noted. If for any reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, or is not medically appropriate, in this case, he or she should clearly explain why that is so. The examiner should address whether the Veteran has a meniscal condition after reviewing the medical evidence of record, including a January 2011 private left knee MRI and x-rays, and October 2018 private bilateral knee MRIs. The examiner should also express an opinion as to whether pain, weakness, fatigability, or incoordination cause additional functional impairment on repeated use over time or during flare-ups. If feasible, the examiner must assess the additional functional impairment on repeated use or 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, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale based on the fact that the Veteran is not having a flare-up at the time of the examination will not be deemed adequate. (Continued on the next page) 4. Provide the Veteran with a VA Form 21-8940 with instructions that it should be completed in order to assist with the adjudication of the TDIU claim. If the Veteran provides a completed VA Form 21-8940, the AOJ should complete any additional development prompted by the information on the completed form. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Battaile 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.