Citation Nr: 21068376 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 17-05 594 DATE: November 10, 2021 REMANDED Entitlement to a rating in excess of 20 percent for degenerative joint disease of the lumbosacral spine (lumbar spine disability) prior to April 28, 2021, and in excess of 40 percent thereafter is remanded. Entitlement to a rating in excess of 10 percent for degenerative arthritis of the right knee (right knee disability) prior to April 28, 2021, and in excess of 40 percent thereafter is remanded. Entitlement to a rating in excess of 10 percent for degenerative arthritis of the left knee (left knee disability) prior to April 28, 2021, and in excess of 40 percent thereafter is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to April 28, 2021, on an extraschedular basis, is remanded. REASONS FOR REMAND The Veteran had active duty service from June 1983 to April 1986. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, continued the 20 percent disability rating for a lumbar spine disability and 10 percent disability ratings for the right and left knees, respectively. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in September 2020. A copy of the transcript has been reviewed and associated with the claims file. These matters were before the Board in January 2021, at which time they were remanded for additional evidentiary development. In a subsequent June 2021 rating decision, the RO increased the ratings for the Veteran's lumbar spine, right knee, and left disabilities to 40 percent, effective April 28, 2021, respectively. In a July 2021 rating decision, the RO granted a TDIU, effective April 28, 2021. 1. Entitlement to a rating in excess of 20 percent for degenerative joint disease of the lumbosacral spine (lumbar spine disability) prior to April 28, 2021, and in excess of 40 percent thereafter is remanded. Pursuant to the Board's remand instructions, a VA examination was performed in April 2021 to assess the severity of the Veteran's lumbar spine disability. After a review of the evidence, the Board finds that this examination is insufficient to determine the present claim. In this regard, the examiner indicated that he was unable to test active or passive range of motion and did not provide an estimate. However, the examiner did provide estimated range of motion loss after repeated use and during a flare up of pain. Accordingly, the Board finds that an addendum opinion is warranted on remand in order for the examiner to conduct a review of the record and provide estimated active and passive range of motion findings of the Veteran's lumbar spine. 2. Entitlement to a rating in excess of 10 percent for degenerative arthritis of the right knee (right knee disability) prior to April 28, 2021, and in excess of 40 percent thereafter is remanded; 3. Entitlement to a rating in excess of 10 percent for degenerative arthritis of the left knee (left knee disability) prior to April 28, 2021, and in excess of 40 percent thereafter is remanded. Pursuant to the Board's remand instructions, a VA examination was performed in April 2021 to assess the severity of the Veteran's bilateral knee disability. After a review of the evidence, the Board finds that this examination is insufficient to determine the present claim. In this regard, the examiner indicated that the Veteran had pain with weight bearing but failed to provide correlating range of motion findings pursuant to the Board's remand instructions and in compliance with Correia v. McDonald, 28 Vet. App. 158 (2016). Moreover, the Veteran reported instability in his knees during the September 2020 hearing. However, the examiner noted that the Veteran had no instability in his knees but subsequently indicated that joint stability testing could not be performed. Accordingly, the Board finds that an addendum opinion is warranted on remand in order for the examiner to conduct a review of the record and provide an estimate of the Veteran's range of motion loss in weight-bearing and the severity, if any, of the Veteran's knee instability. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to April 28, 2021, on an extraschedular basis is remanded. Prior to April 28, 2021, the Veteran's combined disability rating is 40 percent. Thus, he does not meet the threshold requirement for a TDIU. Nevertheless, VA's policy is to rate totally disabled all veterans who are unemployable. In such cases, the rating boards should submit the case to the Director, Compensation Service for extraschedular consideration. See 38 C.F.R. § 4.16(b). In the present case, VA examinations in October 2014 and November 2016 indicate that his lumbar spine and bilateral knee disabilities impact his ability to work. Therefore, the claim of entitlement to a TDIU prior to April 28, 2021, must be referred to the Director, Compensation Service. Moreover, the Board notes that VA examinations indicate that the Veteran is wheelchair bound due to obesity, lumbar spine, and bilateral knee disabilities. A December 2015 statement by P.S.-M., M.D., indicated that the Veteran's medical morbidity was due to his lack of mobility as a direct result of his lumbar spine and bilateral knee disabilities. Accordingly, on remand, the examiners should provide an opinion as to whether the Veteran's necessity to ambulate in a wheelchair is due to his service-connected lumbar spine and bilateral knee disabilities, including whether they contributed to his morbid obesity. Indeed, if this is the case, then if such later obesity is shown to be the cause of other health problems those could potentially be service-connected using obesity as an intermediate step. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran's updated VA treatment records from July 2021 to the present. 2. Obtain and associate with the claims file the VistA images associated with the Veteran's VA treatment records, including the community care treatment records. 3. After completion of #1 and #2, forward the claims file, including a copy of this remand, to the April 2021 examiner for addendum medical opinions. If the April 2021 examiner is unavailable, forward to an appropriate clinician. A VA examination is only necessary if deemed so by the examiner. The examiner should conduct a review of the record and respond to the following questions: A. With regard to the April 2021 VA examination, provide an estimate of the Veteran's right knee range of motion in the weight bearing and non-weight bearing position and note at which point there is pain, if any. B. With regard to the April 2021 VA examination, provide an estimate of the Veteran's left knee range of motion in the weight bearing and non-weight bearing position and note at which point there is pain, if any. C. With regard to the April 2021 VA examination, explain the findings of no bilateral knee instability in light of the inability to test and the statements of knee instability contained in the September 2020 hearing transcript. D. With regard to the April 2021 VA examination, provide an estimate of the Veteran's lumbar spine range of motion in active, passive, weight bearing, and non-weight bearing positions and note at which point there is pain, if any. E. With regard to the April 2021 VA examination and additional examinations of record, please provide an opinion as to whether the Veteran's necessity to ambulate in a wheelchair is due to his service-connected lumbar spine and bilateral knee disabilities, including the impact of these disabilities on his lack of mobility and obesity. F. With regard to the April 2021 VA examinations for the right knee, left knee, and lumbar spine disabilities, indicate how far back these results would apply (i.e., one year, two years, etc.). The examiner is to attempt to elicit information from the record to reply to A, B, C, D, E, and F. Should the examiner maintain that they cannot do so without resorting to speculation, they must explain why this is so. Note: Any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large and not the insufficient knowledge of the examiner. The examiner may indicate the degree of confidence that they place on their estimate, on a scale of 1 to 5, with 1 being least confident and 5 being most confident. The examiner should provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. 4. Thereafter, refer the claim for a TDIU to the Director, Compensation Service for the period prior to April 28, 2021, and notify the Veteran and his representative of such action. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Merrick 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.