Citation Nr: 21068866 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 16-31 351 DATE: November 15, 2021 REMANDED Entitlement to a disability rating in excess of 30 percent from August 1, 2021, for left knee degenerative joint disease (DJD), status post total knee replacement is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to February 28, 2014 due to service-connected disabilities is remanded. INTRODUCTION The Veteran served on active duty in the United States Navy from May 1978 to May 1981 and from October 1981 to September 1991. When this case was before the Board in February 2021 and May 2021, the above-noted issues were remanded for additional development. The case has now been returned to the Board for further appellate review. REASONS FOR REMAND While the Board regrets the delay, the above-noted claim for a disability rating in excess of 30 percent from August 1, 2021 for the Veteran's left knee disability must again be remanded in order to ensure compliance with the previous Board remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In the May 2021 remand, the Board explained that an assessment of the Veteran's flare-ups, as well as range of motion measurements in weight bearing, non-weight bearing, and in passive motion were necessary to properly evaluate the Veteran's left knee disability. See Sharp v. Shulkin, 29 Vet. App. 26 (2017); see also Correia v. McDonald, 28 Vet. App. 158 (2016). The Veteran underwent a VA examination in September 2021; unfortunately, the examiner failed to provide a range of motion assessment in both weight bearing and non-weight bearing. Additionally, the examiner failed to evaluate and assess the Veteran's flare-ups, noting the Veteran does not experience flare-ups of his left knee disability. However, the Veteran reported his left knee swells with increased stepping. Further, a March 2021 VA knee examination indicated the Veteran reported flare-ups of his left knee disability when he missteps. Based on the foregoing, a remand is necessary to obtain a VA knee examination that satisfies requirements of Sharp and Correia. Next, as noted in the May 2021 Board remand, the Board has jurisdiction over the Veteran's TDIU claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran asserts he has been unable to work since April 2012 as a result of his service-connected disabilities. In support of his claim for a TDIU, the Veteran has provided records from the Social Security Administration which indicate he was found unable to secure or maintain gainful employment since April 2012. The Board notes the Veteran has had a schedular rating of 100 percent for his unspecified depressive disorder associated with his right knee disability since February 2014. Prior to February 2014, the Veteran had a combined disability rating of 40 percent based service connection for a left knee disability at 10 percent disabling, right knee disability at 10 percent disabling, left knee post cartilage removal at 10 percent disabling, right knee post cartilage removal at 10 percent disabling, tinnitus at 10 percent disabling, and bilateral hearing loss at 0 percent disabling. As such, prior to February 2014, the Veteran did not meet the schedular criteria under 38 C.F.R. § 4.16(a) for a TDIU. Nonetheless, in cases where the schedular criteria are not met, benefits based on an extra-schedular basis may be considered when the Veteran is unable to secure and maintain a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The Board, however, is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to a TDIU on an extraschedular basis to the Director of Compensation Service. Id. In sum, the Board finds there is plausible evidence which suggests the Veteran was unable to secure and maintain a substantially gainful occupation due to his bilateral knee disabilities. As noted above, prior to February 2014 the schedular criteria for a TDIU were not established. Therefore, the claim must be referred to the Director of Compensation Service for extraschedular consideration. Accordingly, this matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current nature and severity of his left knee disability. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint (i.e. the right knee). If the examiner is unable to conduct the required testing or concludes the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. The case should be referred to the Director of Compensation Service for consideration pursuant to 38 C.F.R. § 4.16(b). The electronic claims file must be made available to the Director of Compensation Service. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Nestander, Jessica S. 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.