Citation Nr: 21070568 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 17-41 228 DATE: November 24, 2021 REMANDED Entitlement to a rating greater than 10 percent for right knee sprain is remanded. Entitlement to a compensable rating for left hip limitation of flexion is remanded. Entitlement to a rating greater than 10 percent prior to May 11, 2016 and to a compensable rating thereafter for left hip limitation of extension is remanded. Entitlement to a rating greater than 10 percent for left hip strain is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) based on service-connected disabilities is remanded. REASONS FOR REMAND The Veteran had active service from November 1992 to May 1996. These matters come before the Board of Veterans' Appeals (Board) from a May 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Veteran provided testimony via videoconference before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. During the October 2020 hearing, the Veteran raised the issue of entitlement ot a TDIU. A claim for a TDIU due to service-connected disability either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, the issue of entitlement to a TDIU has been raised by the record and is before the Board for consideration. 1. Entitlement to a rating greater than 10 percent for right knee sprain is remanded. During the October 2020 hearing before the Board, the Veteran testified that his right knee disability had worsened since his June 2017 VA examination. Notably, the Veteran was afforded a VA examination in October 2020 for the left knee. While the examination report addresses some symptoms of the right knee, it is unclear whether the documented "current symptoms" and descriptions of flare-ups, etc., pertain to both knees. As such, a remand is necessary to schedule an examination to determine the current severity of the right knee disability. Additionally, during his October 2020 hearing, the Veteran testified that he underwent right knee arthroscopy and had been treated by a private provider. On remand, attempts must be made to obtain all updated VA and private treatment records for review. 2. Entitlement to a compensable rating for left hip limitation of flexion is remanded. 3. Entitlement to a rating greater than 10 percent prior to May 11, 2016 and to a compensable rating thereafter for left hip limitation of extension is remanded. 4. Entitlement to a rating greater than 10 percent for left hip strain is remanded. During the October 2020 hearing before the Board, the Veteran testified that his left hip disability had worsened since his June 2017 VA examination. On remand, an examination must be scheduled to determine the current severity of his disability. Additionally, the Veteran testified that he had been treated by several private providers, including chiropractors. On remand, attempts must be made to obtain all updated VA and private treatment records for review. 5. Entitlement to a TDIU based on service-connected disabilities is remanded. The record raises a claim of entitlement to TDIU. Rice, 22 Vet. App. 447. However, a remand is required prior to adjudication of the claim for a TDIU. The Veteran has not been provided adequate notice of the requirements to substantiate TDIU, nor has the RO addressed TDIU in the first instance. Additionally, adjudication of the increased rating claim remanded above may impact the TDIU claim. The matters are REMANDED for the following actions: 1. Issue a notice letter to the Veteran and his representative concerning the claim for a TDIU. Ask him to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. Upon receipt of the form, complete any additional development necessary. 2. Obtain updated VA treatment records. 3. Ask the Veteran to identify all private providers who have treated his right knee and left hip disabilities and to complete the appropriate authorization and release forms so VA can attempt to obtain copies of his records on his behalf. Notify the Veteran that he may submit copies of his records. All attempts to obtain private treatment records must be documented in the claims file. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right knee disability. The examiner must be provided access to the electronic claims file and indicate review of the file in the examination report. The examiner should provide a full description of the right knee disability and report all signs and symptoms necessary for evaluating the disability under the rating criteria. The examiner must test both of the Veteran's knees in active motion, passive motion, and pain with weight-bearing and without weight-bearing. 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). 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left hip disability. The examiner must be provided access to the electronic claims file and indicate review of the file in the examination report. The examiner should provide a full description of the left hip disability and report all signs and symptoms necessary for evaluating the disability under the rating criteria. The examiner must test both of the Veteran's hips in active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also 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). (Continued on the next page) 6. Then, readjudicate the Veteran's claims on appeal. If the benefits sought on appeal remain denied, provide the Veteran and his representative a supplemental statement of the case and allow an appropriate period for response. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. G. Alderman, 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.