Citation Nr: 21071871 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 17-40 720 DATE: December 1, 2021 REMANDED Entitlement to an increased initial rating in excess of 50 percent for the service-connected acquired psychiatric disorder, to include depression and anxiety is remanded. Entitlement to an increased rating in excess of 10 percent for the service-connected right knee disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service in the Air National Guard of New Jersey and the Reserve of the United States Air Force from November 1964 to March 1965; in August 1965; from September 1966 to October 1966; and from July 1967 to August 1967. He was discharged in July 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO or AOJ). In September 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a Video Conference Board hearing. A transcript of that hearing is associated with the claims file. 1. Entitlement to an Increased Initial Rating in Excess of 50 Percent for the Service-Connected Acquired Psychiatric Disorder, to include Depression and Anxiety is Remanded. In this regard, the Veteran last received a VA examination to evaluate his acquired psychiatric disorder in October 2015. During his September 2021 Board hearing, the Veteran testified that his acquired psychiatric disorder, to include depression and anxiety had worsened. He reported increased claustrophobia, social isolation, and episodes of anger. In a September 2021 statement, the Veteran's wife corroborated the Veteran's report of increased episodes of anger and wrote that the Veteran's depression has gotten "so bad he gave me a gun so that it could be locked up in a safe." As there is evidence of worsening of the Veteran's service-connected acquired psychiatric disorder, to include depression and anxiety since the last examination, the Veteran should be afforded a new VA examination to assess the current extent and severity of such condition. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 2. Entitlement to an Increased Rating in Excess of 10 Percent for the Service-Connected Right Knee Disability is Remanded. The Veteran is currently rated at 10 percent for the service-connected right knee disability under 38 C.F.R. § 4.71a, Diagnostic Code 5010, for osteoarthritis with painful noncompensable limitation of motion. See 38 C.F.R. § 4.59. During his September 2021 Board hearing, the Veteran testified that his right knee disability currently manifests by painful bending and walking. He described the level of pain he experiences during flare-ups as "11/10." He testified that his doctor told him to get a knee brace to provide pressure and to help alleviate the pain. He testified that "it seems inevitable that they are going to have to replace the right knee." In a September 2021 statement, the Veteran's wife wrote that the Veteran is unable to travel due to his inability to sit on a plane or in a car. The Veteran was last afforded a VA examination in connection with this claim in December 2020. However, as the Veteran's statements suggests worsening of his condition since his last VA examination, he should be afforded a new and contemporaneous VA examination to assess the current extent and severity of his right knee disability. See Snuffer, 10 Vet. App. at 403. 3. Entitlement to a TDIU is Remanded. The Board also finds that an inferred claim for a TDIU has been reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (When evidence of unemployability is submitted during the pendency of a claim for an increased evaluation, the claim for TDIU is part and parcel of the claim for benefits for the underlying disability). During his September 2021 Board hearing, the Veteran testified that he is unable to work due to his service-connected acquired psychiatric disorder, to include depression and anxiety. Additionally, on VA examination in December 2020, the examiner indicated the Veteran's right knee disability impacts on his ability to work in that he has difficulty sitting, standing, and walking. Adjudication of a TDIU benefit requires consideration of the impact of all service-connected disabilities on a Veteran's ability to secure and follow substantially gainful employment. As there remain open and outstanding claims relating to the Veteran's acquired psychiatric disability and right knee disability which may impact that determination, it would be premature and potentially prejudicial to the Veteran to adjudicate the TDIU claim at this time. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two 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. Send the Veteran an application for increased compensation based on unemployability (VA Form 21-8940) and request that he complete and return the form. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current extent and severity of the service-connected acquired psychiatric disorder, to include depression and anxiety. 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 must attempt to elicit information regarding the severity, frequency, and duration of symptoms. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of the service-connected right knee disability. 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. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. 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). In so doing, 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. The examiner should elicit from the Veteran the point or points at which movement of his right knee initiates 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. 4. Readjudicate all issues on appeal to include the claim for TDIU. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.