Citation Nr: 21071256 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 14-41 696 DATE: November 30, 2021 REMANDED Entitlement to a rating in excess of 10 percent for service-connected left knee injury is remanded. Entitlement to a rating in excess of 10 percent for service-connected left knee instability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1990 to July 1991. This matter originally came before the Board on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. A Travel Board hearing was held in May 2018 before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. At the hearing, the Veteran raised the issue of TDIU. In September 2018, the Board referred the issue of TDIU to the RO and remanded the issue of an increased rating for the Veteran's left knee injury for a VA examination. A June 2020 supplemental statement of the case denied both claims. In a June 2020 rating decision, the RO granted separate compensation for instability of the left knee at 10 percent effective October 3, 2019. The Board remanded these issues in October 2020 to obtain SSA records, additional information regarding her employment from 2011 to 2020, and a new VA examination for her knee disabilities. 1. Entitlement to a rating in excess of 10 percent for service-connected left knee injury is remanded. 2. Entitlement to a rating in excess of 10 percent for service-connected left knee instability is remanded. While the Board sincerely regrets further delay, a fully-informed decision on the issues of entitlement to an increased rating for a left knee injury and left knee instability cannot be made because there has not been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In reviewing the adequacy of the existing VA examination reports, certain range of motion testing must be conducted whenever possible in cases of joint disabilities. 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158 (2016). "[T]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint." Correia, 28 Vet. App. 158. An additional relevant opinion pertaining to flare-ups was also issued by the Court in Sharp v. Shulkin, 29 Vet. App. 26 (2017). Also, the VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). In October 2020, the Board found the October 2019 VA examination and May 2020 addendum opinion did not comply with DeLuca, and remanded for a new examination that specifically identifies any objective evidence of pain, and the degree at which pain begins in reporting the results of range of motion testing. However, the new VA examination conducted in July 2021 does not do this, and thus does not comply with DeLuca. The examiner noted the Veteran had pain on flexion for active range of motion and that the pain causes functional loss, but did not specifically indicate the degree at which pain occurred. The examiner additionally stated the Veteran has "stiffness with pain across the patella" and that her stiffness causes decreased range of motion, but still does not describe to what degree range of motion decreases due to her pain and stiffness. The Disability Benefits Questionnaire used for this examination specifically stated, "If any limitation of motion is specifically attributable to pain, weakness, fatigability, incoordination, or other; please note the degree(s) in which limitation of motion is specifically attributable to the factors identified and describe." The examiner left this range of motion section blank. If the Veteran's limitation of motion due to pain is the same as her initial range of motion, then the examiner needs to explicitly state that. Here, as the examiner left this section blank instead of providing range of motion with pain or indicating the range of motion was the same, the examination is inadequate. As such, a remand is necessary to afford the Veteran another VA examination for her service-connected left knee disabilities. 3. Entitlement to a TDIU is remanded. Since the Board is remanding the Veteran's claim for an increased rating for service-connected left knee injury and instability, any potential future assignment of disability ratings and effective dates for his disabilities will impact the adjudication of the TDIU claim. For this reason, this issue must be resolved prior to the resolution of the claim for TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The Board notes this issue was remanded in October 2020 to clarify the Veteran's employment history. The RO requested this information in October 2020 correspondence. A response from the Veteran has not been received. As this issue is already being remanded, the Veteran will have another opportunity to clarify her employment history. The matters are REMANDED for the following action: 1. Obtain all VA treatment records not currently associated with the claims file. 2. See the Board's explanation above for finding the July 2021 VA knee examination inadequate. 3. For EACH year (2011, 2012, 2013, 2014, 2015, 2016, 2017, 2018, 2019, and 2020), the Veteran is asked to provide the following information based on questions derived from VA Form 21-8940 Part 18: (a) name and address of employer; (b) type of work; (c) hours per week; (d) dates of employment; (e) time lost from illness; (f) highest gross earnings per month; and (g) total earned income for year. 4. Schedule a new examination to evaluate the severity of the Veteran's service-connected left knee disabilities. The claims folder must be made available to and reviewed by the examiner. The examiner should note in the examination report that the claims folder has been reviewed. All indicated studies, including x-rays should be performed. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, AND at what degree of motion she demonstrates such objective evidence (e.g., 0 to 130 degrees with pain at 115 degrees). NOTE: The examiner must explicitly indicate the degree at which pain begins OR explicitly state that there is no additional loss of range of motion due to pain. The examiner should record the results of range of motion testing for pain on active motion, passive motion, weight-bearing, and non-weight-bearing in light of Correia. 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 also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups assessed in terms of the degree of additional range of motion loss. In regard to flare-ups (pursuant to Sharp v. Shulkin), if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding her flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. [The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran.] TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Papacalos, 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.