Citation Nr: 21073756 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 16-44 067 DATE: December 10, 2021 REMANDED Entitlement to a rating in excess of 10 percent for right knee degenerative joint disease is remanded. Entitlement to a rating in excess of 20 percent for right knee instability is remanded. Entitlement to a compensable rating for right knee degenerative joint disease, limitation of flexion is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1956 to March 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Veteran testified at a hearing before the undersigned. This matter was previously remanded by the Board in September 2018, October 2020, and August 2021. The case has been returned to the Board at this time for further appellate review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 1. Entitlement to a rating in excess of 10 percent for right knee degenerative joint disease is remanded. 2. Entitlement to a rating in excess of 20 percent for right knee instability is remanded. 3. Entitlement to a compensable rating for right knee degenerative joint disease, limitation of flexion is remanded. Pursuant to the August 2021 Board remand, the Veteran was afforded VA knee examinations in August and September 2021. However, the Board finds that neither of these VA examinations adequately addresses the issue of any additional functional limitation caused by flare-ups of the Veteran's right knee disability. The August 2021 VA examination notes that the Veteran did not report flare-ups, which is contradicted by the medical evidence of record. The September 2021 VA examination report reflects that the Veteran has severe daily flare-ups described as causing sharp, deep pain, and an inability to walk. However, the September 2021 VA examiner goes on to state that the Veteran is not being examined during a flare-up and that the procured evidence does not suggest that pain, fatigability, weakness, lack of endurance, or incoordination significantly limit the Veteran's functional ability with flare-ups of his right knee disability. Finally, the September 2021 VA examiner did not provide an estimate range of motion in degrees for the Veteran's right knee during flare-ups. Without any further explanation, the September 2021 VA examination report appears internally inconsistent regarding additional disability caused by flare-ups of the Veteran's right knee disability. Thus, remand is warranted to address this deficiency. 4. Entitlement to TDIU is remanded. The September 2021 VA examiner stated that the Veteran's right knee disability could impact his ability to work because work involving ambulation or physical labor, standing or walking over short distances, bending, and lifting heavy objects would be out of the question. The Court of Appeals for Veterans Claims has held that entitlement to a TDIU is an element of all appeals of an increased evaluation when such claim is raised by the record or asserted by the Veteran. Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009). As the record reflects some evidence of unemployability, the issue of whether the Veteran is entitled to a TDIU is part of the claim for an increased evaluation for a right knee disability and is properly before the Board on appeal. The issue of entitlement to a TDIU is inextricably intertwined with the rating assigned for the Veteran's service-connected right knee disability, and therefore, is remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The matters are REMANDED for the following action: Obtain an addendum opinion from the September 2021 VA examiner who previously examined the Veteran for his increased rating claim for his right knee disability. If this examiner is unavailable, obtain an addendum opinion from an appropriate clinician. The selected clinician must provide an opinion, based on the Veteran's lay statements and the other evidence of record, estimating any additional degrees of limited motion caused by functional loss during a flare-up of the Veteran's right knee disability. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups without resorting to speculation, the examiner should state 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). The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so; however, the Veteran's history of symptoms capable of lay observation cannot be dismissed solely on the basis that they are not recorded in contemporaneous treatment records. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Elias, 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.