Citation Nr: 21072815 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 16-32 832 DATE: December 6, 2021 REMANDED Entitlement to a rating in excess of 10 percent for residuals of a right knee injury is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from September 1984 to April 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Detroit, Michigan. In September 2019, the Veteran testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. The issue on appeal was previously before the Board in February 2020 and March 2021, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. On both occasions, after taking further action, the AOJ confirmed and continued the prior rating and returned the case to the Board. Although the Board sincerely regrets the additional delay, further development is necessary to ensure substantial compliance with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a Board remand confers a right on a claimant to compliance with the remand order). The Veteran's claim of entitlement to service connection for a back disability was also previously before the Board. In a June 2021 rating decision, the AOJ granted service connection for intervertebral disc syndrome with herniated disc of L3-S1 and for left lower extremity radiculopathy. Accordingly, that issue is no longer on appeal. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201; Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). In an October 2021 Informal Hearing Presentation, the Veteran's representative noted that a June 2021 VA examiner stated that the Veteran's right knee impacted her ability to work and that she had been on disability from her job at the post office since November 2007. The representative contended that entitlement to a TDIU had therefore been raised by the record. The United States Court of Appeals of Veterans Claims (Court) has held that if a claimant or the record reasonably raises the question of whether a veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel of that claim for increased rating is whether a TDIU is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the Board finds that the issue of entitlement to a TDIU is also on appeal. 1. Entitlement to a rating in excess of 10 percent for residuals of a right knee injury is remanded. In its March 2021 remand, the Board noted that the Veteran was currently service-connected for residuals of a right knee injury, but not for arthritis in her right knee. It further noted that the Veteran had been afforded VA examinations in connection with her claim in May 2014, June 2015, and July 2020, and that the file also contained a Knee Disability Benefits Questionnaire (DBQ) from December 2019. The Board then outlined the findings regarding the Veteran's right knee diagnoses as laid out in the evidence, and that the June 2015 VA examiner opined that it was less likely than not that the Veteran's right knee arthritis was related to a service-connected meniscus tear. The Board also noted that none of the VA examiners had clearly differentiated between symptoms attributable to the Veteran's service-connected residuals of a right knee injury disability related to a meniscal condition and her non-service-connected right knee arthritis. The Board directed the AOJ to obtain updated VA treatment records and, in pertinent part, to afford the Veteran a new VA examination of her right knee. It instructed the examiner to specifically differentiate between the symptoms attributable to the Veteran's service-connected and non-service connected symptoms, if possible, and that if no such differentiation was possible, to note that in the report. The Court has held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 170 (2016). The Veteran was afforded a new VA examination in June 2021. The examiner was unable to test any range of motion of the right knee because the Veteran was wearing a tight brace on the knee that she was unable to remove. The examiner did not provide responses to several pertinent questions, including whether the Veteran had a history of instability, recurrent subluxation, or frequent effusion of the right knee, or what the nature of the relationship of abnormal imaging findings was to the diagnosed conditions. The examiner also failed to test for range of motion in the left knee, stating only that range of motion testing for that knee was not indicated, and later on that the left knee joint was not claimed. There is also nothing in the report to indicate that the examiner addressed the question of differentiation between service-connected and non-service-connected symptoms. The Board finds the June 2021 VA examination inadequate. The examiner did not provide responses to several relevant questions, the examination is not complaint with the holding of Correia, and she did not attempt to differentiate between symptoms attributable to the Veteran's service-connected residuals of a right knee disability related to a meniscal tear and her non-service-connected right knee arthritis, as specifically instructed by the Board in its March 2021 remand. Under the circumstances, a new VA examination is required. See Stegall, supra. As to the Veteran's inability to remove her right knee brace at the June 2021 VA examination, the Board advises the Veteran to cooperate with testing needed to evaluate the severity of her condition to the extent that she is able. The Board calls attention to the fact that while VA has a duty to assist a claimant in obtaining evidence necessary to substantiate a claim, "[t]he duty to assist is not a one-way street. If a veteran wishes help, she cannot passively wait for it in those circumstances where she should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 191 (1991). Particularly, absent a showing of good cause, a Veteran's refusal to participate or cooperate during a VA examination is akin to failure to report for a VA examination for purposes of VA regulations under 38 C.F.R. § 3.665 (2014). See generally VAOPGCPREC 4-91 (Feb. 13, 1991). Any failure by a Veteran to cooperate during a VA examination "subjects [the Veteran] to the risk of an adverse adjudication based on an incomplete and underdeveloped record." Kowalski v. Nicholson, 19 Vet. App. 171, 181 (2005). While it appears in the present case that the Veteran was unable to undergo right knee range of motion testing at the June 2021 VA examination due to the tightness of her brace, and that she therefore may have had good cause not to undergo range of motion testing, the Board notes that VA treatment records show that range of motion testing of the right knee was performed during the course of treatment in March 2021 and July 2021, both prior and subsequent to the June 2021 VA examination. While the VA treatment records are certainly helpful in assessing the current severity of the Veteran's service-connected residuals of a right knee injury as related to a meniscal tear, those examinations do not provide a full description of the Veteran's associated functional impairments as they relate to the relevant rating criteria. The Board therefore emphasizes that the full cooperation of the Veteran at VA examinations, to the extent feasible, is needed to assess the current severity of her service-connected condition. The Board also notes that in August 2021, a Social Security Administration (SSA) Profile and Benefit Data report indicates that the Veteran is in receipt of disability benefits from the SSA. Thus far, it does not appear that any attempt has been made to obtain a complete copy of the medical records underlying the SSA's award. Because the records from SSA could contain information pertinent to the issues on appeal, the AOJ should make efforts to procure them. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Updated records of any VA treatment should also be procured. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). 2. Entitlement to a TDIU is remanded. As noted, the record has reasonably raised the issue of whether the Veteran is precluded from obtaining or maintaining substantial gainful activity as a result of her service-connected residuals of right knee injury. The TDIU issue is inextricably intertwined with the issue that is being remanded. See, e.g., Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on an appellant's claim for another issue). Accordingly, the TDIU issue will be remanded as well. These matters are REMANDED for the following action: 1. Ask the Veteran to complete and return a VA form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). 2. Ask the SSA to provide copies of any relevant records in its possession regarding the Veteran's claim(s) for SSA disability benefits, following the procedures set forth in 38 C.F.R. § 3.159. Efforts to obtain the evidence should be fully documented and should be discontinued only if it is concluded that the evidence sought does not exist or that further efforts to obtain the evidence would be futile. 38 C.F.R. § 3.159 (c)(2). The evidence obtained, if any, should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and her representative should be notified. 3. Obtain copies of records pertaining to any relevant VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 4. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for a VA examination with an appropriate VA clinician to assess the current severity of her service-connected right knee disability. The examiner should provide a full description of the Veteran's associated functional impairments as they relate to the relevant rating criteria. The examination report should include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. See Correia, supra. To the extent feasible, the examiner should differentiate between the symptoms attributable to the Veteran's service-connected residuals of right knee injury and her non-service-connected right knee arthritis, undertaking any testing deemed necessary (with the Veteran's consent). If no such differentiation is possible, that should be noted. The examiner should also address the functional impairment that results from the disabilities that may affect the Veteran's ability to function and perform tasks in a work setting. A complete medical rationale for all opinions expressed must be provided. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues on appeal should be re-adjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Oldroyd, 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.