Citation Nr: 21072461 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 14-31 954A DATE: December 3, 2021 REMANDED Entitlement to a rating higher than 10 percent for left knee tricompartmental osteoarthritis. Entitlement to a rating higher than 10 percent for right knee tricompartmental osteoarthritis. Entitlement to a compensable rating for right knee instability, to include prior to June 21, 2021. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from April 1980 to November 1985. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Board decisions in April 2018, July 2020, and May 2021 remanded the claims for additional development. Unfortunately, there has not been substantial compliance with the Board's previous remand directives, and another remand is required for the reasons set forth below. Stegall v. West, 11 Vet. App. 268, 271 (1998). In an August 2021 rating decision, the RO granted a separate rating for right knee instability and assigned a noncompensable rating, effective June 21, 2021. The Board considers this matter to be part and parcel of the original claim for an increased rating for right knee disability. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that Veterans are presumed to seek the maximum available benefit for a disability). Therefore, it is also considered to be on appeal, and is listed as a separate issue. 1. Entitlement to a rating higher than 10 percent for left knee tricompartmental osteoarthritis 2. Entitlement to a rating higher than 10 percent for right knee tricompartmental osteoarthritis 3. Entitlement to a compensable rating for right knee instability, to include prior to June 21, 2021 The Veteran's representative contends that the Veteran experiences functional loss due to knee pain, that medication is required for pain, and that pain, fatigability, and lack of endurance limits the Veteran's functional ability with flare-ups. See Appellate Brief (October 2021). The Veteran's representative also mentions neurological residuals and Diagnostic Codes for muscle injuries, but identified no evidence indicating any symptoms of neurological or muscular impairment. See id.; see also Appellate Brief (June 2020). The Veteran reports that he "needs a lot of medication to ease the pain," see NOD (June 2014), and that he has daily knee pain and popping, see Form 9 (September 2014). In this case, the July 2020 Board decision directed the examiner to "address any ameliorative effects of medications the Veteran uses to treat his service-connected tricompartmental osteoarthritis... [and any] neurologic manifestations." See BVA Decision (July 2020). However, the June 2021 report of VA examination provides no discussion of the medications used to treat the Veteran's knee pain, and no indication that the ameliorative effects of the medications used by the Veteran were considered. The examiner also provided no indication that a neurological assessment was provided to determine whether the Veteran's knee disabilities are also manifested by neurological impairment. Additionally, the Board finds that the claims file indicates that there are oustanding relevant records. VA treatment records show that the Veteran underwent non-VA physical therapy for his knees. Specifically, VA records show that a new patient evaluation was completed in June 2019, and that in the next month documents were "uploaded to TPA Portal." See CAPRI (October 2019). However, the claims file does not show that those records have been obtained and the Board does not have access to the TPA Portal. Therefore, to ensure that VA has met its duty to assist, remand is required. 38 C.F.R. § 3.159(c)(1). Further, the Board finds that the evidence indicates that the Veteran experienced knee instability prior to the June 2021 VA examination. A January 2013 VA record of emergency treatment shows that the Veteran reproted that his knee feels unstable and sometimes gives out on him. See CAPRI (January 2013). The Veteran reported that his knee gave out while walking on steps during VA treatment in August 2014. See CAPRI (February 2016). An April 2017 VA treatment record shows that the Veteran reported that he fell after his knee gave away. See CAPRI (January 2019). The Veteran reported that he fell twice in the past 30 days, and that his knee pops and buckles, during VA treatment in June 2019. See CAPRI (February 2021). Although the reports of VA examinations prior to June 2021 consistently noted no instability, no reasoning was provided why the Veteran's reports do not indicate knee instability. Notably, the Board must rely on independent medical evidence, and not its own judgment, when the rating criteria involve a medical assessment. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (concluding Board may consider only independent medical evidence to support findings and may not rely on its own medical judgment). As the appropriate disability rating cannot be granted based on the inadequacies of prior VA examinations but the evidence indicates that a higher rating may be warranted, a retrospective opinion should be obtained which considers the evidence of instability prior to June 2021. See Chotta v. Peake, 22 Vet. App. 80, 85 (2008) (holding that the duty to assist may include obtaining a retrospective medical opinion to fill in gaps in the medical evidence of record). 4. Entitlement to a TDIU The Veteran's representative contends that "a person may be too disabled to engage in employment although he or she is up and about and fairly comfortable at home or upon limited activity." See Appellate Brief (October 2021). The Veteran contends that his service-connected depressive disorder and bilateral knee arthritis prevent him from working. See Veterans Application for Increased Compensation Based on Unemployability (December 2020). The issue of TDIU is inextricably intertwined with the claims for increased ratings remanded herein. Therefore, the Board must defer consideration of that claim at this time. See Harris v. Derwinski, 1 Vet. App. 181 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Additionally, remand is required as the Board finds that the record is incomplete for adjudication. In this case, there are conflicting reports regarding when the Veteran stopped working. The Veteran has reported that he last worked in 2010, see CAPRI (November 2013), that he has not worked since 2011, see CAPRI (October 2019), and that he last worked in January 2020, see Veterans Application for Increased Compensation Based on Unemployability (December 2020). Additionally, the May 2014 report of VA examination indicates that the Veteran was working at that time through VA's vocational rehabilitation program. Further, the Veteran has not provided complete information regarding his past employment on the VA forms provided to him. This information is required for proper adjudication of the claim. Accordingly, the matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for all non-VA physicians and facilities which provided treatment for his knees, to include through VHA Choice Approval for Medical Care. Make two requests for any authorized records identified, unless it is clear after the first request that a second request would be futile. 2. Ask the Veteran to provide his complete employment history and employer information, utilizing either VA Forms 21-8940 or 21-4192. If either form is returned completed, make two requests for any authorized records identified, unless it is clear after the first request that a second request would be futile. 3. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected tricompartmental osteoarthritis of the right knee, tricompartmental osteoarthritis of the left knee, and right knee instability. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. 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. (a.) 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. 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. 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). (b.) The examiner must also address whether there are any ameliorative effects of medications the Veteran uses to treat his service-connected tricompartmental osteoarthritis of the right knee and tricompartmental osteoarthritis of the left knee. (c.) The examiner must further address whether there are any neurological manifestations related to his service-connected tricompartmental osteoarthritis of the right knee and tricompartmental osteoarthritis of the left knee. (d.) Retrospective Findings: Following a review of the record and current interview of the Veteran, the clinician should provide retrospective opinion regarding the presence of right knee instability prior to June 21, 2021, considering the Veteran's subjective reports and the objective findings in the May 2014 and November 2019 VA examinations. The examiner should fully describe the severity of such symptoms and proffer an opinion as to whether such instability is slight, moderate, or severe. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to TDIU. If the benefits sought are not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. J. GALLAGHER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thaddaeus J. Cox, 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.