Citation Nr: 21067712 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 09-10 978 DATE: November 5, 2021 THE ISSUES 1. Entitlement to an increased rating in excess of 20 percent for a service-connected right knee disability, to include arthritis and chondromalacia. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, prior to June 9, 2019. REMANDED Entitlement to an increased rating in excess of 20 percent for a service-connected right knee disability, to include arthritis and chondromalacia is remanded. Entitlement to a TDIU prior to June 9, 2019 is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1987 to March 1988. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In that decision, the RO denied service connection for a left knee disability, a rating in excess of 20 percent for a right knee disability, and entitlement to TDIU. The Veteran subsequently withdrew his claim for TDIU, but then put in a new claim for TDIU, the denial of which he appealed. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in March 2014. A transcript of the hearing has been associated with the Veteran's claim file. The Board notes that in the April 2014 remand, the RO was instructed to issue a Statement of the Case (SOC) on the issue of TDIU. An SOC was issued in June 2015 and the Veteran did not submit a VA Form 9 Substantive Appeal within the response period. However, in January 2016, the RO issued a Supplemental Statement of the Case (SSOC), on which it included the issue of entitlement to TDIU. Therefore, the issue is considered to be on appeal. See Percy v. Shinseki, 23 Vet. App. 37, 44 (2009). These matters were before the Board in December 2016, at which time they were remanded for further development. In a subsequent February 2020 rating decision, the RO granted the Veteran entitlement to a TDIU from June 9, 2019, but continued to deny entitlement prior to that date. In August 2020, the Board remanded these matters for further development, to include a new VA knee examination and opinion regarding the functional impact of the Veteran's service-connected disabilities on his employment. Finally, these matters were most recently before the Board in August 2021, at which time the Board remanded them to obtain a supplemental statement of the case (SSOC). 38 C.F.R. § 19.31 Such a SSOC was issued in May 2021. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that 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). However, as will be explained below, the Board finds that there has not been substantial compliance with its August 2020 remand directives. Id. 1. Entitlement to an increased rating in excess of 20 percent for a service-connected right knee disability, to include arthritis and chondromalacia is remanded. 2. Entitlement to a TDIU prior to June 9, 2019 is remanded. In the December 2016 Board decision, the matters were remanded to afford the Veteran a new VA examination in order to determine the current severity of his right knee disability. The Veteran was afforded a VA examination in November 2019. With regards to the service-connected right knee disability the examiner at one point indicated that the Veteran had a history of recurrent effusion with intermittent swelling in both knees, later in the same examination, the examiner indicated that there was no effusion in either knee. Additionally, while a history of lateral instability was not shown on the examination, the record contains several complaints of falling and giving way during the period on appeal. See e.g., February 2019 VA treatment notes; November 2018 VA treatment note; June 2014 VA treatment note; April 2014 VA treatment note; April 2014 Board hearing. Therefore, in its August 2020 decision, the Board found that the November 2019 VA examination was internally contradictory and failed to reflect consideration of lay testimony documented in the medical records. Therefore, upon remand, the Board found that the Veteran should be scheduled for a new knee examination. See Stegall, 11 Vet. App. 268, 271 (1998). Specifically, the Board requested that the specifically determine whether the Veteran had recurrent subluxation or lateral instability, and characterize any such impairment as slight, moderate, or severe. The examiner was also directed clarify if there was a history of lateral instability as contained in the medical record in which there are several complaints of falling and giving way during the period on appeal. In this respect, the examiner was explicitly asked to acknowledge the Veteran's reports of repeated falls and buckling due to his claimed right knee instability. See e.g., February 2019 VA treatment notes; November 2018 VA treatment note; June 2014 VA treatment note; April 2014 VA treatment note; April 2014 Board hearing. The Veteran was afforded a new VA knee examination in February 2021. The examiner merely indicated that the Veteran did not have instability on the current test and made no attempt to reconcile this with the Veteran's reported history of falls. The Veteran was noted to occasionally use a brace, cane, and walker, but there was no indication on whether any of these assistive devices had been proscribed by a physician. As the February 2021 VA knee examination does not comply with the August 2020 Board remand directives, a new examination is necessary. Additionally, the Board notes that the regulations for rating a knee disability based on instability have changed effective February 7, 2021. The new regulations provide for ratings based on persistent instability and the use of an assistive device (such as a cane) and bracing for ambulation. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. In this case, it is unclear whether there is persistent instability, whether the brace is prescribed for instability or pain relief, or whether the cane is also prescribed by a physician. Given the new regulations, the addendum opinion must address these questions so the Board may properly rate the claim. In December 2016, the Board remanded the issue of a TDIU for a medical opinion which considered the functional impact of his service-connected disabilities on his ability to function in a work setting and to perform work tasks, jointly. In a subsequent February 2020 rating Veteran was granted entitlement to a TDIU effective June 9, 2019, the date he met the schedular requirement. However, in its August 2020 remand, the Board observed that no medical opinion which addressed the impact of the Veteran's service-connected disabilities, jointly, on his employment for the period prior to June 9, 2019 was associated with the file, and remanded the matter in order to afford the Veteran such an opinion. Upon remand, the Veteran was afforded opinions which addressed the functional impact of his disabilities on his employment, separately. The opinion which addressed the Veteran's psychiatric disability is largely written in the present tense and it is unclear if such an opinion is referring to the time period prior to June 9, 2019. See February 2021 VA Mental Disorders Disability Benefits Questionnaire. Another opinion which addresses only the Veteran's right knee arthritis also does not appear to be referring to the correct time period. See May 2021 VA Medical Opinion Disability Benefits Questionnaire. An opinion addressing the left knee disability is identical to the opinion offered regarding the right knee disability. See May 2021 VA Medical Opinion Disability Benefits Questionnaire. Upon examination of the Veteran's service-connected left elbow disability, the VA examiner recorded that the Veteran denied any symptoms. See February 2021 VA Elbow Examination. While the issue of entitlement to a TDIU prior to June 9, 2019 is inextricably intertwined with the other issue on appeal, the Board also finds that upon remand, the Veteran should be afforded a medical opinion which complies with the August 2020 remand directives. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on another issue); Stegall, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Obtain any outstand and relevant VA and/or private treatment records. Should such exist, associate them with the claims file. 2. After undertaking the development listed above, schedule the Veteran for a new VA examination with an appropriate medical professional in order to ascertain the nature of his service-connected right knee disability. The claims file must be made available to and reviewed by the examiner. A note that it was reviewed should be included in the report. A copy of the exam notification letter sent to the Veteran and his representative and should be associated with the claims file. With respect to the Veteran's service-connected right knee disability, all indicated testing, including X-rays, should be accomplished including particularly range of motion testing in degrees and whether repetition of motion causes a further decrease in range of motion or increase in pain. The examiner should test the range of motion for active motion, passive motion, weight-bearing, and nonweight-bearing of the right knee and the paired joint. The examiner must specifically note at which point in the Veteran's range of motion that pain starts. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. Tests of joint movement against varying resistance should be performed. The extent of any incoordination, weakened movement, and excess fatigability on use should also be described by the examiner. If feasible, the examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups), and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. If feasible, the examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. The examiner should also specifically report at what point any pain begins, and at what point any pain causes any functional impairment, or whether there is any additional range of motion loss due to excess fatigability, incoordination, or flare-ups. The examiner must specifically determine whether the Veteran has recurrent subluxation or lateral instability. The examiner should also clarify if there is a history of lateral instability as contained in the medical record in which there are several complaints of falling and giving way during the period on appeal. The examiner is asked to address the Veteran's reports of repeated falls and buckling due to his right knee instability. See e.g., February 2019 VA treatment notes; November 2018 VA treatment note; June 2014 VA treatment note; April 2014 VA treatment note; April 2014 Board hearing. The examiner should also address the following: (a.) Does the need for a knee brace and cane suggest persistent instability, notwithstanding any testing results? (b.) Is the Veteran's knee brace prescribed for persistent instability? (c.) Is the Veteran's use of a cane prescribed for persistent instability? (d.) Is the Veteran's use of a walker prescribed for persistent instability? If ankylosis is present, this should also be noted. The supporting rationale for all opinions expressed must be provided. 3. Schedule the Veteran for an examination with an appropriate medical professional who is qualified to offer an opinion regarding the functional impairment of the Veteran's service-connected disabilities with regard to his employment for the period prior to June 9, 2019. In proffering an opinion, the examiner should review the electronic claims file and address the Veteran's functional limitations due to his service-connected disabilities, jointly, as they may relate to his ability to function in a work setting and to perform work tasks. The examiner must specifically take into consideration the Veteran's level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. All opinions expressed should be accompanied by supporting rationale. 4. Thereafter, readjudicate the issues on appeal as noted above, including the claim for TDIU prior to June 9, 2019, including on an extraschedular basis if the Veteran does not meet the schedular requirements. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Geary, 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.