Citation Nr: 21072528 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 17-35 211 DATE: December 3, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for left ankle degenerative joint disease (DJD) is remanded. Entitlement to an initial rating in excess of 10 percent for right knee chondromalacia is remanded. Entitlement to an initial rating in excess of 10 percent for left knee chondromalacia is remanded. Entitlement to an initial rating in excess of 10 percent for left hip DJD is remanded. Entitlement to an initial rating in excess of 10 percent for right hip capsule sprain is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1973 to October 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from February and December 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of the appeal, a November 2018 rating decision granted increased 10 percent ratings for the Veteran's service-connected left knee chondromalacia, right knee chondromalacia, left hip DJD and right hip capsule sprain, effective from September 23, 2011. The matters have been characterized accordingly. In August 2021 correspondence, the Veteran withdrew his request for a hearing. His request for a hearing before the Board is accordingly deemed to be effectively withdrawn. See 38 C.F.R. § 20.704(e). The Board notes that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, here the evidence reveals that the Veteran is retired and that he has not reported that his service-connected disabilities on appeal preclude substantially gainful employment. Therefore, the issue of entitlement to TDIU is not before the Board. 1. Entitlement to an initial rating in excess of 10 percent for left ankle DJD is remanded. The Veteran seeks a higher rating for his service-connected left ankle. The Veteran's June 2017 VA Form 9 documents a complaint of worsening of the Veteran's service-connected disabilities. Specifically, the Veteran reported that his physician suggested surgery for his service-connected left ankle. See June 2017 VA Form 9. Additionally, the Veteran was most recently examined for his left ankle disability in July 2013. On July 2013 VA examination, the examiner noted the Veteran reported flare-ups that caused pain and swelling. See also August 2017 VA physician note treatment record. The July 2013 VA examination was not wholly adequate pursuant to 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158, 166 (2016); Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) (the examiner should "estimate the functional loss that would occur during flares."). Thus, a new examination is necessary on remand. 2. Entitlement to an initial rating in excess of 10 percent for right knee chondromalacia is remanded. 3. Entitlement to an initial rating in excess of 10 percent for left knee chondromalacia is remanded. The Veteran was most recently examined for his right knee and left knee disabilities in July 2013. At that time, the examiner noted that the Veteran reported flare-ups described as swelling in the knees for no reason. See July 2013 VA knee and lower leg conditions examination; see also August 2017 VA physician note treatment record. The Board notes that the July 2013 VA examination was not wholly adequate pursuant to 38 C.F.R. § 4.59. See Correia, 28 Vet. App. at 166; Sharp, 29 Vet. App. at 33 (the examiner should "estimate the functional loss that would occur during flares."). Thus, a new examination is necessary on remand. 4. Entitlement to an initial rating in excess of 10 percent for left hip DJD is remanded. 5. Entitlement to an initial rating in excess of 10 percent for right hip capsule sprain is remanded. The Veteran asserts that higher ratings are warranted for his right hip capsule sprain and left hip DJD. The Veteran was last afforded VA examinations with regard to his right and left hip disabilities in July 2013. The Board finds that a more contemporaneous VA examination is required to properly assess the current severity of his right and left hip disabilities. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Schedule the Veteran for an examination(s) (or telehealth interview etc., if an in-person examination is not feasible) by an appropriate clinician(s) to determine the current severity of his service-connected left ankle, right knee, left knee, right hip and left hip disabilities. The examiner(s) should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. The examiner should identify all left ankle, right knee, left knee, left hip and right hip pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and nonweight-bearing. 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 describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-ups. If not, 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 symptoms and/or 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 unable to provide such an opinion without resorting to speculation, please provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. If unable to opine without speculation, the examiner should indicate whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). Jarrette A. Marley Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jordan, Jacquelynn 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.