Citation Nr: 21071730 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 13-14 304 DATE: December 1, 2021 REMANDED Entitlement to an evaluation in excess of 10 percent for chronic right knee strain is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from September 1988 to October 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied a higher than 10 percent evaluation for chronic right knee strain. The Veteran appealed for a higher evaluation. The Veteran testified before a Veterans Law Judge (VLJ) at a January 2015 video conference hearing. A transcript of this hearing is of record. In December 2020, the Veteran was notified that the VLJ who held his January 2015 hearing was no longer employed by the Board. In January 2021, the Veteran requested another Board hearing. In May 2021, the Veteran testified before the undersigned VLJ at a Virtual hearing. 38 C.F.R. § 20.604. The issue on appeal has been remanded for further development in July 2105, January 2019, and June 2021. A claim for a TDIU rating is considered part of an increased rating claim when such issue is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, in a July 2021 VR&E feasibility determination narrative report, the Veteran asserted that he was last employed as an overnight stocker at Stam's Club in December 2013 and that he was unable to continue working due to his knee. Accordingly, the Board finds that a TDIU claim has been raised by the Veteran, and the issue of TDIU is part and parcel of the increased rating claim on appeal, and is properly before the Board. 1. Entitlement to an evaluation in excess of 10 percent for chronic right knee strain is remanded. 2. Entitlement to TDIU is remanded. Although additional delay is regrettable, the Board finds that remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that the Veteran is afforded every possible consideration. Throughout the appeal, the Veteran has reported instability of the knee. For example, in the April 2020 VA examination, the Veteran stated that he had instability and "buckling" at times. The Veteran testified in May 2021 that his right knee symptoms had worsened. He described having throbbing, continuous pain, instability, giving way, and buckling on a daily basis. In addition, the Veteran indicated that the previous VA examination did not adequately depict the severity of his instability of the knee. In a July 2021 statement in support of claim for posttraumatic stress disorder, the Veteran expressed that while working at his job, his right knee gave way and that he fell. At his most recent VA examination in July 2021, the examiner checked no to the question of whether the Veteran reported or had a history of instability or recurrent subluxation of the knee. In light of the above, the Board finds that a remand is necessary in order to afford the Veteran an examination that discusses his instability contentions. As for TDIU, the Veteran's TDIU claim is inextricably intertwined with the increased rating claim remanded herein as its resolution may impact adjudication of the TDIU claim. See Henderson v. West, 12 Vet. App. 11, 20 (1998), citing Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. Obtain all the outstanding treatment records for the Veteran's chronic right knee strain that are not currently of record. As requested by the previous remand instructions, to the extent that VA treatment records from Robley Rex VAMC since September 2017 are unavailable, all such findings should be documented in the record. 2. Schedule the Veteran for an examination by an appropriately qualified clinician to determine the current severity of his service-connected chronic right knee strain. The claims file, including a copy of this REMAND, must be provided to the examiner. The examiner must conduct range of motion testing using a goniometer. 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 his right knee symptoms and/or 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 or after repeated use over time. If the examination does not take place during a flare-up, the examiner should elicit relevant information as to the Veteran's flare ups, ask the Veteran to describe additional functional loss and then estimate the functional loss due to flare ups based on all the evidence of record. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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) The examiner MUST provide an opinion concerning the degree of severity (whether mild, moderate, or severe) of any instability or subluxation of the knees. The examiner should also determine if the knees lock, and if so, the frequency of the locking. The examiner should comment on the extent of any functional impairment caused by the Veteran's service-connected chronic right knee strain, to include in an occupational setting and in performing ordinary, daily activities. All findings should be fully documented in the examination report. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. 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.