Citation Nr: 21071047 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 17-29 414 DATE: November 29, 2021 REMANDED Entitlement to a rating in excess of 10 percent for left knee meniscal tear with osteoarthritis is remanded. Entitlement to a rating in excess of 10 percent for right knee patellofemoral syndrome with osteoarthritis is remanded. Entitlement to a compensable rating for hemorrhoids is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1988 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Veteran testified at a hearing before the undersigned. 1. Entitlement to a rating in excess of 10 percent for left knee meniscal tear with osteoarthritis is remanded. 2. Entitlement to a rating in excess of 10 percent for right knee patellofemoral syndrome with osteoarthritis is remanded. 3. Entitlement to a compensable rating for hemorrhoids is remanded. The Board finds that remand is warranted for the following reasons. First, the Veteran testified that he receives treatment for his knee disabilities at VA, however, no VA treatment records have been associated with the claims file. Thus, remand is warranted to associate these records with the claims file. Second, the Veteran testified that he receives treatment from a private medical provider for his knee disabilities. Private treatment records were associated with the claims file in 2015, however, it is unclear if the Veteran has received treatment for his knee disabilities and/or hemorrhoids from his private medical provider since 2015. Thus, on remand, efforts should be made to associate any missing relevant private treatment records with the claims file. Third, the Veteran testified that his knee disabilities and hemorrhoids have worsened since his last VA examinations in September 2015. Thus, the Veteran is entitled to a new VA examination. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Finally, the September 2015 VA knees examination is insufficient. Specifically, the VA examiner stared that, because the Veteran was not examined during a flare-up or after repeated use over time, they were unable to say, without mere speculation, whether pain, weakness, fatigability, or incoordination significantly limits the right and left knee's functional ability with flare-ups and after repeated use over time. Because the examiner did not indicate whether they had considered all procurable data (i.e., the Veteran's statements regarding any functional loss during flare-ups), and whether any member of the medical community at large could not provide such an opinion without resorting to speculation, this examination is deemed inadequate. See Sharp v. Shulkin, 29 Vet. App. 26, 34-37 (2017). For these reasons, remand is warranted. 4. Entitlement to TDIU is remanded. The September 2015 VA examiner stated that the Veteran's knee disabilities could impact his ability to work because the Veteran should not stand or walk for prolonged period of times and should not kneel or squat. The Court of Appeals for Veterans Claims has held that entitlement to TDIU is an element of all appeals of an increased evaluation when such claim is raised by the record or asserted by the Veteran. Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009). As the record reflects some evidence of unemployability, the issue of whether the Veteran is entitled to TDIU is part of the claim for an increased evaluation for his knee disabilities and is properly before the Board on appeal. The issue of entitlement to TDIU is inextricably intertwined with the rating assigned for the Veteran's service-connected knee disabilities and hemorrhoids, and therefore, is remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. Ask the Veteran to identify any missing private treatment that he may have had for his knee disabilities and/or hemorrhoids. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 3. Schedule the Veteran for a VA examination (or telehealth interview, if an in-person examination is not feasible), preferably with a clinician who has not previously examined the Veteran, to determine the current nature and severity of his service-connected knee disabilities. After reviewing the entire claims file, the selected examiner should conduct all indicated tests and studies, to include range of motion testing. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. 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. 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 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 and 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 over time 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). The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so; however, the Veteran's history of symptoms capable of lay observation cannot be dismissed solely on the basis that they are not recorded in contemporaneous treatment records. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 4. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible), preferably with a clinician who has not previously examined the Veteran, to determine the current nature and severity of his service-connected hemorrhoids. 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. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so; however, the Veteran's history of symptoms capable of lay observation cannot be dismissed solely on the basis that they are not recorded in contemporaneous treatment records. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 5. Conduct any necessary development to adjudicate the claim for a TDIU. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Elias, 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.