Citation Nr: 21069613 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 11-13 885 DATE: November 19, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability due to the service-connected disabilities (TDIU) from June 30, 2008, to January 28, 2009, is remanded. Entitlement to an initial compensable disability rating for the left ankle strain from June 30, 2008, to February 9, 2011, is remanded. Entitlement to an initial disability rating in excess of 10 percent for the left ankle strain since February 10, 2011, is remanded. Entitlement to an initial compensable disability rating for the osteochondritis dissecan of the right talus (right ankle) from June 30, 2008, to February 1, 2010, is remanded. Entitlement to an initial disability rating in excess of 10 percent for osteochondritis dissecan of the right talus (right ankle) since February 2, 2010, is remanded. Entitlement to an initial disability rating in excess of 10 percent for degenerative arthritis of the right knee joint is remanded. REASONS FOR REMAND The Veteran served on active military service from May 1984 to December 1984. The initial rating issues are on appeal from an August 2009 rating decision. In September 2015, November 2016, and September 2018, the Board of Veterans' Appeals (Board) remanded this appeal to the Agency of Original Jurisdiction (AOJ) for further development. The record reflects that you received an October 2020 letter indicating that you could request a virtual tele-hearing instead of waiting for a travel board hearing. Upon further review, you do not have a pending hearing request. You provided testimony on these issues at a Board hearing with the undersigned Veterans Law Judge in February 2018. The transcript of that hearing is currently of record. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU is part of an increased or initial rating claim when such claim is expressly raised by the veteran or reasonably raised by the record. Here, the issue of entitlement to a TDIU due to the service-connected right knee disability is raised by the record. The Veteran is currently in receipt of a TDIU since January 29, 2009. He filed his service connection claims (which were eventually granted) on June 30, 2008. On his January 2009 VA 21-8940 Form, the Veteran stated that he last worked full time in June 2007 and stopped working due to his low back and knees. Thus, the Board has added the TDIU issue prior to January 29, 2009, to the current appeal. 1. Entitlement to a TDIU from June 30, 2008, to January 28, 2009, is remanded. On his January 2009 VA 21-8940 Form, the Veteran stated that he last worked full time in June 2007 and stopped working due to his low back and knees. However, on a June 2009 VA 21-4192 Form, the Veteran's employer stated that the Veteran was still working. A June 2009 statement from the Veteran's owner/manager, statement suggests that the Veteran may have been performing marginal employment during this period of the appeal. Accordingly, upon remand, the Veteran's federal tax returns must be obtained for this claimed period of unemployability. 2. Entitlement to an initial compensable disability rating for the left ankle strain from June 30, 2008, to February 9, 2011, is remanded. 3. Entitlement to an initial disability rating in excess of 10 percent for the left ankle strain since February 10, 2011, is remanded. 4. Entitlement to an initial compensable disability rating for the osteochondritis dissecan of the right talus (right ankle) from June 30, 2008, to February 1, 2010, is remanded. 5. Entitlement to an initial disability rating in excess of 10 percent for osteochondritis dissecan of the right talus (right ankle) since February 2, 2010, is remanded. 6. Entitlement to an initial disability rating in excess of 10 percent for degenerative arthritis of the right knee joint is remanded. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the initial rating issues. In the September 2018 remand, the Board directed the AOJ to afford the Veteran's representative an opportunity to submit a VA Form 646, Statement of Accredited Representative in Appealed Case, in support of the Veteran's claims. This action was not completed upon remand. Also, in the September 2018 remand, the Board requested VA examinations to be obtained. In response, the Board finds the August 2019 VA knee and ankle examinations to be inadequate. Passive ranges of motion of the knees and ankles were not obtained by the August 2019 VA examiner. The Board specifically requested this measurement in its September 2018 remand. Additionally, the VA examiner found that there was pain exhibited on all active ranges of motion of the right knee and ankles and that pain caused functional loss but did not state at what degree pain begins. Accordingly, another remand is required for VA examinations and a VA Form 646 to be obtained. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following actions: 1. Ask the Veteran to provide Internal Revenue Service (IRS) tax returns from 2008 to 2009, and a statement that the copy is an exact duplicate of the return filed with the IRS. Provide the Veteran with an IRS Form 4506-T "Request for Transcript of Tax Return," which may also be found at https://www.irs.gov/pub/irs-pdf/f4506t.pdf so that the Veteran may request tax returns from 2008 to 2009, and submit them to VA. Tell the Veteran that if he does not have copies of his tax returns for the requested years, he may use the IRS form cited above. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected osteochondritis dissecan of the right talus (right ankle) and left ankle strain. The examiner should provide a full description of the disabilities, and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If pain is noted on active or passive motion, the examiner must specify at what degree of motion pain begins, if possible. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected degenerative arthritis of the right knee joint. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If pain is noted on active or passive motion, the examiner must specify at what degree of motion pain begins, if possible. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. After completing the above development, request that the Veteran's representative provide a VA Form 646 or its equivalent addressing the issues on appeal. 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefits sought are not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. M. Watkins, 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.