Citation Nr: 21071374 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 08-37 306 DATE: November 30, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent prior to April 8, 2021, and in excess of 20 percent thereafter for right knee arthroscopic surgery (progression of stress fractures, tibias) is remanded. Entitlement to an initial rating in excess of 10 percent prior to April 8, 2021, and in excess of 20 percent thereafter for left knee arthroscopic surgery (progression of stress fractures, tibias) 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 Marine Corps from February 1988 to June 1992. The Veteran's increased rating claims for his left and right tibia fracture residuals originally came before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision. In September 2018, the Board assigned a 10 percent rating for both legs, increasing his rating from zero percent. The Veteran appealed the September 2018 Board decision to the Court of Appeals for Veterans Claims (CAVC). In an August 2019 Order, the Court granted a Joint Motion for Remand (JMR), vacated the September 2018 Board decision to the extent that it did not award a rating in excess of 10 percent for either the right or left leg, and remanded the issue to the Board for development consistent with the JMR. Thereafter, the Board remanded these increased rating claims in January 2020 and October 2020 to obtain new VA examinations consistent with Correia and Deluca. The VA examination findings from April 2021 show the Veteran's diagnosis changed to left and right knee arthroscopic surgeries and is a progression of the previous diagnosis of left and right leg tibia fracture residuals. Thus, the issues have been recharacterized as entitlement to an increased evaluation for service-connected left and right knee arthroscopic surgeries (progression of stress fractures, tibias), as noted above. In an August 2021 rating decision, the RO granted an increased evaluation of 20 percent for the Veteran's service-connected knee disabilities, effective April 2021. Despite the grant of this increased evaluation, the Veteran has not been awarded the highest possible evaluation. As a result, he is presumed to be seeking the maximum possible evaluation. The issue remains on appeal, as the Veteran has not indicated satisfaction with the 20 percent rating. A.B. v. Brown, 6 Vet. App. 35 (1993). Regarding the Veteran's TDIU claim, a February 2020 statement from the Veteran's representative raised the additional issue of a TDIU. The Court has held that a claim for a TDIU, whether expressly or reasonably raised by the record, is not a separate claim for benefits but is instead part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, when entitlement to a TDIU is raised during the appeal of a rating for a disability, it is part of the claim for benefits for the underlying disability. Id. at 453-54. In March 2021, the Board found the Veteran's claim for a TDIU was at issue, and remanded this claim to obtain a completed VA Form 21-8940. 1. Entitlement to a higher initial rating for right knee arthroscopic surgery (progression of stress fractures, tibias) is remanded. 2. Entitlement to a higher initial rating for left knee arthroscopic surgery (progression of stress fractures, tibias) is remanded. While the Board sincerely regrets further delay, a fully-informed decision on the issues of entitlement to an increased rating for left and right knee arthroscopic surgeries (progression of stress fractures, tibias) 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 January 2020 and October 2020, the Board ordered new VA examinations to determine the current severity of the Veteran's left and right knee disabilities and instructed the examiner to specifically identify 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 April 2021 does not do this, and thus does not comply with DeLuca. The examiner noted the Veteran had pain on flexion and extension for active and passive range of motion for the right knee and flexion and extension for active range of motion for the left knee. The examiner further indicated the Veteran had pain on active, passive, weight-bearing, and non-weight bearing range of motion testing for both knees. The examiner's indication of pain on passive range of motion testing on the left side is inconsistent. Under the section "additional factors contributing to disability", the examiner stated that both knees have swelling that causes pain, stiffness, and limited range of motion. Additionally, under the section regarding surgery procedures, the examiner indicated that the residuals from his knee surgery are pain, stiffness, and limited range of motion for both knees. However, the examiner did not specifically indicate the degree at which pain occurred anywhere in the examination. 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 April 2021 examiner left this section blank for both knees. If the Veteran's limitation of motion due to pain is the same as his initial range of motion, then the examiner needs to explicitly state that. Here, as the examiner left this section blank instead of providing a positive or negative answer, 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 his service-connected left and right 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 and right knee disabilities, 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). As this claim is being remanded, the Veteran will be afforded another opportunity to submit VA Forms 21-8940 and 21-4192. 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 April 2021 VA knee examination inadequate. 3. Send the Veteran a notice letter for a TDIU claim. This notice letter must include (1) a VA Form 21-8940, and (2) a VA Form 21-4192. The AOJ should request that the Veteran fill out these TDIU forms and submit them back to the AOJ. 4. Schedule a new examination to evaluate the severity of the Veteran's service-connected left and right 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 he 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 his 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.