Citation Nr: 21074420 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 17-51 361 DATE: December 15, 2021 ORDER Service connection for tinnitus is granted. A September 1, 2014 effective date for a 20 percent rating for a left shoulder disability is granted. A July 18, 2014 effective date for service connection for left shoulder residual scars is granted. An effective date earlier than July 24, 2000 for a 10 percent rating for right knee patellofemoral syndrome is denied. An effective date earlier than July 18, 2014 for a separate 30 percent rating right knee limitation of extension is denied. An initial compensable rating for left shoulder scars is denied. A separate rating higher than 30 percent for right knee recurrent subluxation and lateral instability is denied. A separate rating higher than 30 percent for left knee recurrent subluxation and lateral instability is denied. A total disability rating based on individual unemployability (TDIU), from July 10, 2015, is granted. REMANDED Service connection for sleep apnea is remanded. Service connection for bilateral hearing loss is remanded. A rating higher than 20 percent for a left shoulder disability is remanded. A rating higher than 10 percent for right knee patellofemoral syndrome is remanded. A separate rating higher than 30 percent for right knee limitation of extension is remanded. An initial rating higher than 30 percent for left knee patellofemoral syndrome with limitation of extension is remanded. A TDIU, prior to July 10, 2015, to include on an extraschedular basis, is remanded. Special monthly compensation (SMC) based on the need for regular aid and attendance is remanded. An effective date earlier than July 10, 2015 for service connection for a left knee disability is remanded. FINDINGS OF FACT 1. Resolving all reasonable doubt in his favor, the Veteran has experienced continuous tinnitus symptomatology since service. 2. The Department of Veterans Affairs (VA) received an increased rating claim from the Veteran on July 18, 2014. 3. Resolving all reasonable doubt in his favor, the Veteran's left shoulder disability limited motion of the arm at the shoulder level as of September 1, 2014. 4. The Veteran's July 18, 2014 claim reasonably included service connection for left shoulder residual scars. 5. It is not factually ascertainable that an increase in the severity of the Veteran's right knee disability occurred in the year prior to July 18, 2014. 6. The Veteran's left shoulder scars are not painful or unstable, and they cover a total area less than 6 square inches (39 sq. cm.). 7. The Veteran is already assigned the maximum schedular rating available for right knee recurrent subluxation and lateral instability. 8. The Veteran is already assigned the maximum schedular rating available for left knee recurrent subluxation and lateral instability. 9. Resolving all reasonable doubt in his favor, the Veteran has been unable to secure or follow a substantially gainful occupation as a result of his service-connected left shoulder and bilateral knee disabilities since at least July 10, 2015. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for a September 1, 2014 effective date for a 20 percent rating for a left shoulder disability have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.155, 3.400, 4.71a, Diagnostic Code 5201. 3. The criteria for a July 18, 2014 effective date for service connection for left shoulder residual scars have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.155, 3.400, 4.118, Diagnostic Code 7805. 4. The criteria for an effective date earlier than July 24, 2000 for a 10 percent rating for right knee patellofemoral syndrome have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.155, 3.400, 4.59, 4.71a, Diagnostic Code 5260. 5. The criteria for an effective date earlier than July 18, 2014 for a separate 30 percent rating for right knee limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.155, 3.400, 4.71a, Diagnostic Code 5261. 6. The criteria for an initial compensable rating for left shoulder scars have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7805. 7. The criteria for a separate rating higher than 30 percent for right knee recurrent subluxation and lateral instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5257. 8. The criteria for a separate rating higher than 30 percent for left knee recurrent subluxation and lateral instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5257. 9. The criteria for a schedular TDIU, from July 10, 2015, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1992 to November 1997. The agency of original jurisdiction (AOJ) issued the rating decisions on appeal in March 2015 and July 2015. Through his attorney, he withdrew his request for a hearing before the Board of Veterans' Appeals (Board) in August 2021. Service Connection The Veteran seeks service connection for multiple disabilities, including tinnitus. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the current disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Presumptive service connection may be established for certain chronic diseases, including organic diseases of the nervous system like tinnitus, which become manifest to a compensable degree within one year of separation from active service. 38 C.F.R. §§ 3.307, 3.309. When a disease is not shown to be chronic during service or within the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b); Walker, 708 F.3d at 138. 1. Service connection for tinnitus The Veteran contends he has had tinnitus since service. After careful review, the Board finds that service connection is warranted based on continuity of symptomatology. VA treatment records document a tinnitus diagnosis in August 2014. This diagnosis satisfies the current disability requirement for service connection. The Board must decide whether this disability was incurred in or is otherwise related to service. At a January 2015 VA examination, the Veteran reported that he first noticed constant bilateral tinnitus 20 years earlier (i.e., during active duty). The 2015 examiner determined that his tinnitus was less likely than not caused by or the result of military noise exposure. Essentially, this opinion is based on a lack objective evidence of permanent noise-induced hearing damage during service. Although the 2015 examiner considered "reports of specific military related noise exposure and/or reports of any continuation of difficulties with tinnitus," the examiner did not clearly address the Veteran's lay statement that the onset of his tinnitus occurred in service. Consequently, the examiner's opinion is not adequate to decide the claim. Miller v. Wilkie, 32 Vet. App. 249, 25960 (2020) (a VA examiner "must address the veteran's lay statements to provide the Board with an adequate medical opinion"). Nevertheless, there is sufficient evidence here to establish service connection based on continuity of symptomatology. See Walker, 708 F.3d at 1339 (describing the more relaxed evidentiary standard for service connection for chronic diseases). As a layperson, the Veteran is competent to report the onset of subjective symptoms like ringing in the ears. Charles v. Principi, 16 Vet. App. 370 (2002). The Board finds his lay statements about in-service onset of tinnitus credible, and at least as probative as the 2015 examiner's opinion. Resolving all reasonable doubt in his favor, the Board finds that the Veteran has experienced continuous tinnitus symptomatology since service. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Earlier Effective Dates The Veteran requests the "earliest effective date allowed by law" for multiple service-connected disability ratings. See March 2016 Notices of Disagreement. Generally, the effective date of an evaluation and award of compensation is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. However, if a claim for service connection is received within one year of separation from service, the effective date shall be the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2). The "date entitlement arose" is the date when the claimant met the requirements for the benefit sought, and that date is determined on a "facts found" basis. McGrath v. Gober, 14 Vet. App. 28, 35 (2000). For increased rating claims, VA may grant an effective date up to one year prior to receipt of the claim if it is "factually ascertainable" that an increase in disability occurred within one year of the claim. 38 C.F.R. § 3.400(o)(2). An "increase in disability" is not "any ascertainable increase," but rather a claimant must demonstrate entitlement to compensation at the next-higher disability level. Hazan v. Gober, 10 Vet. App. 511, 520 (1997). If the increase in disability occurred more than one year prior to the claim, however, the increase is effective as of the date of claim. Gaston v. Shinseki, 605 F. 3d 979, 984 (2010). An award of secondary service connection for an additional disability does not represent an increase in severity of the original disability for effective date purposes. Ross v. Peake, 21 Vet. App. 528, 533 (2008). 2. Earlier effective date for left shoulder disability rating The AOJ assigned the following ratings and effective dates for the Veteran's left shoulder disability: a temporary total rating, for surgery necessitating convalescence, from May 14, 2014 to August 31, 2014; a 10 percent rating for painful motion, from September 1, 2014; and a 20 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5201, from November 19, 2014. See March 2015 Rating Decision. After careful review, the Board finds that the Veteran is entitled to a September 1, 2014 effective date for the current 20 percent rating. The record shows that VA received an increased rating claim from the Veteran on July 18, 2014. See VA Form 21-526EZ, Application for Disability Benefits and Related Compensation Benefits. The Veteran has not made any contentions regarding the date of receipt of this claim. A VA examiner assessed the severity of the Veteran's shoulder disability in November 2014. Range of motion at that time was 0 to 50 degrees on flexion and 0 to 60 degrees on abduction; he was unable to perform overhead motion. The AOJ granted a 20 percent rating for limitation of motion of the arm at shoulder level, effective from the date of the examination. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Private orthopedic records suggest that the Veteran's range of motion was restricted to this level prior to the November 2014 examination. In particular, a September 2014 post-surgery status report indicates that he could perform occasional work below shoulder level and no work above shoulder level. As noted above, the Veteran received a three-month temporary total rating following shoulder surgery in May 2014. It is not factually ascertainable that any other increase in shoulder disability occurred in the year prior to July 18, 2014. Private medical records show that the Veteran reported injuring his left shoulder when he fell in the bathroom in January 2014. A physician noted at that time that he had "preexisting" limited range of motion of the shoulder. The treatment report does not contain any specific range of motion measurements, or include any other information that could demonstrate entitlement to compensation at the next-higher disability level. Hazan, 10 Vet. App. at 520. Resolving all reasonable doubt in his favor, the Board finds that the Veteran's left shoulder disability limited motion of the arm at the shoulder level as of September 1, 2014the first day after the three-month temporary total rating for convalescence ended. An earlier effective date for the 20 percent rating is granted. 3. Earlier effective date for service connection for left shoulder residual scars The AOJ also granted service connection for residual scars as secondary to the Veteran's left shoulder disability, effective November 19, 2014the date of the VA shoulder examination. See March 2015 Rating Decision. The Board finds that an earlier effective date for service connection for the scars is warranted. As noted above, VA received the Veteran's left shoulder increased rating claim on July 18, 2014. The Board finds that this claim reasonably included secondary service connection for additional disabilities related to the left shoulder surgery, including residual scars. Thus, the effective date for secondary service connection is the date of receipt of the claim. A July 18, 2014 effective date for service connection for residual scars is granted. 4. Earlier effective dates for right knee patellofemoral syndrome and limitation of extension disability ratings The AOJ continued a 10 percent rating for right knee patellofemoral syndrome, effective July 24, 2000, and assigned a separate 30 percent rating for limitation of extension of the right knee, effective July 18, 2014. The Board finds no basis in the record to award earlier effective dates for either of these ratings. The record shows that VA received the increased rating claim at issue no earlier than July 18, 2014. See e.g. September 2017 Statement of the Case. The Veteran has not made any contentions regarding the date of receipt of the claim. Nor has he made any allegations of clear and unmistakable error in any prior final VA rating decision, including the November 2000 decision that granted the initial 10 percent rating. The medical records on file do not show that an increase in the severity of the Veteran's right knee disability occurred in the year prior to July 18, 2014. The January 2014 private medical record noted above shows a complaint that his "knee [gave] out and he fell in his bathroom injuring his lower back and left shoulder" three days earlier. However, this treatment report does not specify which knee gave out, and it does not include any other information about the Veteran's right knee symptoms at that time. Thus, the report does not demonstrate entitlement to compensation at the next-higher disability level. Hazan, 10 Vet. App. at 520. In sum, the Board finds that no factually ascertainable increase in the severity of the Veteran's right knee disability occurred in the year prior to July 18, 2014. There is no reasonable doubt to resolve in his favor in this instance. Gilbert, 1 Vet. App. at 53. An earlier effective date is denied. Increased Ratings The Veteran also seeks increased ratings for his service-connected disabilities. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. VA must evaluate all of the evidence so that its decisions are equitable and just. 38 C.F.R. § 4.6. Where there is a question as to which of two evaluations shall be applied, a higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 5. Compensable rating for left shoulder scars The AOJ assigned a noncompensable rating for the Veteran's left shoulder residual scars. The Board finds that a compensable rating is not warranted. Diagnostic Code 7801 provides ratings for burn scars or scars due to other causes, not of the head, face or neck, that are associated with underlying soft tissue damage. A 10 percent rating is assigned where such scars cover an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.). A 20 percent rating is assigned where they cover an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.). A 30 percent rating is assigned where they cover an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.). A maximum 40 percent rating is assigned where they cover an area or areas of 144 square inches (929 sq. cm.) or greater. 38 C.F.R. § 4.118. Diagnostic Code 7802 provides a maximum 10 percent rating for burn scars or scars due to other causes, not of the head, face or neck, that are not associated with underlying soft tissue damage. The 10 percent rating is assigned where such scars cover an area or areas of 144 square inches (929 sq. cm.) or greater. Id. Diagnostic Code 7804 provides ratings for scars that are unstable or painful. A 10 percent rating is assigned for one or two scars that are unstable or painful, a 20 percent rating is assigned for three or four unstable or painful scars, and a maximum 30 percent rating is assigned for five or more unstable or painful scars. Id. An unstable scar is one where, for any reason, there is frequent loss of skin covering over the scar. Diagnostic Code 7804, Note (1). If a scar is both painful and unstable, another 10 percent is added to the evaluation. Id., Note (2). The most probative evidence here comes from the November 2014 VA examination, which revealed 8 scars on the anterior left shoulder measuring 1.0 cm x 0.5 cm. The 2014 examiner indicated that these scars are not painful or unstable, and that they do not have a total area equal to or greater than 6 square inches (39 sq. cm.). The Board finds no evidence in the record that contradicts these findings, or otherwise supports a higher rating under any applicable diagnostic code. As the preponderance of evidence is against the claim, there is no reasonable doubt to resolve in the Veteran's favor. Gilbert, 1 Vet. App. at 53. A compensable rating for left shoulder residual scars is denied. 6. Increased ratings for recurrent subluxation and lateral instability of the knees The AOJ has assigned additional separate ratings for the Veteran's left and right knee disabilities. Each knee is rated at the maximum 30 percent under Diagnostic Code 5257, for severe recurrent subluxation and lateral instability. 38 C.F.R. § 4.71a. VA recently amended the rating criteria for evaluating musculoskeletal disabilities, including Diagnostic Code 5257, and the changes went into effect on February 7, 2021. However, these changes are not relevant here because the maximum rating available under the revised Diagnostic Code 5257 is still 30 percent. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). Because the Veteran already has the maximum schedular disability rating available under Diagnostic Code 5257, there is no basis for the Board to assign an increased rating. A separate rating higher than 30 percent for right knee recurrent subluxation and lateral instability is denied. A separate rating higher than 30 percent for left knee recurrent subluxation and lateral instability is also denied. 7. TDIU The Veteran contends he has been unable to obtain and maintain substantially gainful employment due to service-connected disabilities since September 2014. See August 2021 Memorandum of Law. The Board finds that a TDIU is warranted as of July 10, 2015. As discussed below, remand is necessary to determine whether he is entitled to a TDIU prior to that date. VA will grant a TDIU, when the schedular rating is less than total, if the evidence shows that a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). A schedular TDIU is available where: there is only one service-connected disability, and it is rated at 60 percent or more; or there are two or more disabilities, with at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Id. If a veteran is unable to secure and follow a substantially gainful occupation, but does not meet the percentage requirements for a schedular TDIU, then the claim will be referred to VA's Director of Compensation Service (Director) for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board cannot grant an extraschedular TDIU in the first instance. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to a veteran's history, education, skills, and training; whether they have the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether they have the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, including their history, education, skills, and training. Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In this case, the Veteran's combined rating for multiple service-connected disabilities is 80 percent, from July 10, 2015, and 90 percent, from October 19, 2015. He therefore meets the percentage requirements for a schedular TDIU as of July 10, 2015. The most probative evidence of record demonstrates that the Veteran has been unemployable due to his left shoulder and knee disabilities since at least that date. In particular, the Board finds the July 2017 assessment from vocational specialist "J.C." highly probative. J.C. reviewed the claims file and performed a transferable skills analysis using information from the U.S. Bureau of Labor Statistics. Ultimately, J.C. determined that the Veteran would have been unable to secure, follow or maintain a substantially gainful occupation due to service-connected disabilities since at least September 2014, when he was last capable of sedentary work. J.C. summarized the Veteran's education and past work history as follows: He has a high school education. He worked as an aircraft mechanic during service and in an automobile factory after that. He has experience with computer programming, desktop support, and systems administration. He lost his most recent IT department job in September 2014, and he has been unemployed since then. He was out on disability for three months prior to losing his job. This summary is consistent with the other evidence on file, including a Social Security Wage Earnings Statement which shows no significant income since 2014. J.C. noted that the Veteran reports chronic pain and physical limitations, including frequent falls, associated with his service-connected orthopedic disabilities. He experiences "debilitating" flare-ups of pain that occur several times a week and last for prolonged periods of time. J.C. explained that such flare-ups would result in disturbances in concentration and ability to complete tasks, frequent unscheduled absences, and unacceptable levels of prolonged absenteeism from work. Thus, they would have "a significant negative impact on the [Veteran's] ability to maintain a regular and predictable schedule." J.C. concluded it is highly unlikely that the Veteran would be capable of maintaining any substantially gainful employment, even at the sedentary level. Medical records, including VA examinations, support J.C.'s conclusions. For example, a December 2015 VA examiner noted that the Veteran's left shoulder disability impairs his ability to perform various occupational tasks, such as heavy lifting, long periods of driving, and fine movements like writing and typing. An October 2015 VA examiner noted that he is unable to bear weight for extended periods of time due to his knee disability, and that he regularly uses a cane and/or walker. His primary care provider made similar findings in a December 2014 physical residual functional capacity assessment. Furthermore, the Veteran receives ongoing VA treatment for chronic pain management. Throughout the appeal period, he has consistently reported that pain affects his ability to work, concentrate and perform other activities of daily living. The Board finds these statements about his chronic pain and related functional impact credible. Accordingly, resolving all reasonable doubt in his favor, the Board finds that the Veteran has been unable to secure or follow a substantially gainful occupation as a result of his service-connected left shoulder and bilateral knee disabilities since at least July 10, 2015. REASONS FOR REMAND 1. Service connection for sleep apnea The Veteran contends his sleep apnea is due to his Gulf War service. VA treatment records reflect that he was diagnosed with obstructive sleep apnea via sleep study in 2015. At a March 2015 pulmonary consultation, he reported that he has had the same symptoms for 20 years (i.e., since active duty). To date, the Veteran has not received a VA examination to determine the nature and etiology of his sleep apnea. The record contains competent evidence of a current disability, evidence of possible in-service symptoms, and "an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the [Veteran's] service." However, there is insufficient medical evidence on file to decide the claim. As such, remand to the AOJ for an examination is warranted. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 2. Service connection for bilateral hearing loss The Veteran also seeks service connection for bilateral hearing loss. There is conflicting evidence in the record as to whether he has a current hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. VA treatment records from August 2014 show a diagnosis of bilateral sensorineural hearing loss with a "severe" score on the Hearing Handicap Inventory for the Elderly. The 2014 VA audiologist stated that the Veteran's responses "were accurate but slight inconsistences were noted," and that the results "should not be used for disability determination." In January 2015, a VA examiner determined that the Veteran had normal hearing thresholds in both ears from 500 to 8000 Hz. However, the 2015 examiner did not record speech discrimination (Maryland CNC Word List) scores, which may be used to establish a hearing loss disability under 38 C.F.R. § 3.385. The examiner indicated that the "use of the word recognition score is not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent word recognition scores, etc., that make combined use of puretone average and word recognition scores inappropriate." However, the specific reason (or reasons) for this finding about the appropriateness of using speech discrimination/word recognition scores is not clear from the examiner's report. The Board finds that the 2015 examiner failed to adequately explain why the use of speech discrimination scores was inappropriate in the Veteran's case. Remand for a new examination is therefore warranted, especially in light of the earlier "severe" hearing loss diagnosis in the VA treatment records. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA undertakes the effort to provide a VA examination or obtain an opinion, it must ensure that the examination or opinion is adequate). On remand, the examiner must record both puretone thresholds and speech recognition scores for the Veteran, or clearly explain why such scores could not be obtained or used in the Veteran's case. 3. Increased rating for left shoulder disability The Veteran seeks a rating higher than 20 percent for his left shoulder disability, to include a second temporary total rating for shoulder surgery in June 2015. The record shows that he received VA examinations in November 2014 and December 2015. However, neither examiner appears to have complied with the joint testing requirements set forth in Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). Specifically, there is no indication that the examiners tested for pain on passive motion and in a non-weight-bearing position, and no explanation as to why such testing could not be conducted or was unnecessary. The 2014 and 2015 examinations are therefore inadequate to decide the claim. Additionally, the 2015 examiner failed to comply with the requirements of Sharp v. Shulkin, 29 Vet. App. 26, 32-33 (2017), concerning flare-ups. The 2015 examiner noted that the Veteran's left shoulder flare-ups "can be described as throbbing pain, stiffness, weakness, numbness in arm, [and] severe limited mobility," and that pain and other factors significantly limit functional ability during these flare-ups. However, the examiner stated that any additional functional loss "will depend on the severity of the flare ups, so [it] will be mere speculation to estimate that" in terms of range of motion. The Board finds that the 2015 examiner did not attempt to elicit all relevant information regarding the severity, frequency, duration, precipitating and alleviating factors, and the extent of functional impairment during the Veteran's flare-ups. Nor did the examiner adequately explain the basis for the conclusion that they could not offer an opinion on estimated functional loss without resort to speculation. Id. Remand to the AOJ for a new shoulder examination is warranted. 4. Increased ratings for right knee patellofemoral syndrome and limitation of extension The Veteran also seeks increased ratings for his right knee disability. As explained above, he is already assigned the maximum rating available for right knee recurrent subluxation and lateral instability. However, the right knee is separately rated at 10 percent for patellofemoral syndrome, based on painful motion under 38 C.F.R. § 4.59, and at 30 percent for limitation of extension under 38 C.F.R. § 4.71a , Diagnostic Code 5621. See March 2015 Rating Decision. The Veteran received VA knee examinations in November 2014 and October 2015. However, there is no indication that either examiner tested for pain on passive motion and in a non-weight-bearing position. Neither examiner explained why such testing could not be conducted or was unnecessary in the Veteran's case. The 2014 and 2015 examinations are therefore inadequate to decide whether he is entitled to an increased rating based on limitation of motion. Correia, 28 Vet. App. at 169-70. Remand for a new right knee examination is warranted. 5. Increased rating for left knee patellofemoral syndrome with limitation of extension The Veteran also seeks an increased rating for his left knee disability. He is already assigned the maximum rating available for left knee recurrent subluxation and lateral instability. In addition, the left knee is separately rated at 30 percent for patellofemoral syndrome with limitation of extension under Diagnostic Code 5621. The October 2015 VA examiner assessed the Veteran's left knee. As explained above, there is no indication that the examiner tested for pain on passive motion and in a non-weight-bearing position, and there is no explanation as to why such testing could not be conducted or was unnecessary. The examination is therefore inadequate to decide whether he is entitled to an increased rating based on limitation of motion. Correia, 28 Vet. App. at 169-70. Additionally, the 2015 examiner did not adequately address functional loss during flare-ups under Sharp. The Veteran reported extreme pain, locking, and decreased function of the left knee with flare-ups. The examiner indicated that pain and other factors significantly limit functional ability during these flare-ups, but did not describe this additional loss in terms of range of motion. The examiner stated, without further elaboration, that they were "unable to evaluate in office." The Board finds that the examiner did not attempt to elicit all relevant information from the Veteran about his left knee flare-ups, and that the examiner did not adequately explain why they could not offer an opinion on estimated functional loss. 29 Vet. App. at 32-33. Remand for a new left knee examination is warranted. 6. A TDIU, prior to July 10, 2015, to include on an extraschedular basis As discussed above, the Board finds that the Veteran is entitled to a schedular TDIU from July 10, 2015. However, he does not meet the percentage requirements for such a rating under 38 C.F.R. § 4.16(a) prior to that date. The Board must therefore decide whether referral to the Director for extraschedular consideration is appropriate. Kuppamala, 27 Vet. App. at 457. The correct standard for extraschedular referral is whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." Ray, 31 Vet. App. at 66. This standard is lower than that for the decision to grant a TDIU on the merits. Id. at 62. The decision to refer a claim does not automatically bind the Board when it later decides whether to award an extraschedular rating. Id. The Board finds sufficient evidence for referral here. Notably, the 2017 vocational assessment from J.C. indicates that the Veteran was unable to secure, follow or maintain a substantially gainful occupation due to service-connected disabilities since at least September 2014. The Veteran has submitted multiple personal statements to this effect as well. Remand for extraschedular referral is warranted. 7. SMC based on the need for regular aid and attendance The Veteran requested special monthly compensation, as applicable, in his March 2016 notice of disagreement. A July 2020 statement from his spouse indicates that "M.M." has had to assist him "with daily activities, from getting in and out of bed to showering or bathing" due to the service-connected shoulder and knee disabilities. Accordingly, the issue of SMC based on the need for regular aid and attendance is before the Board. See 38 C.F.R. § 3.155(d)(2); Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). Because the Board is remanding the shoulder and knee claims above, the "inextricably intertwined" SMC issue is also remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). 8. Earlier effective date for service connection for left knee disability Finally, the Veteran filed a timely notice of disagreement with respect to the July 10, 2015 effective date for service connection for his left knee disability. He requests the "earliest effective date allowed by law" for this disability. March 2016 Notice of Disagreement. To date, the AOJ has not issued a statement of the case (SOC) with respect to the left knee effective date issue. Remand for an SOC is warranted. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). On remand, the AOJ must furnish an SOC, notify the Veteran and his attorney of his appellate rights, and allow them the opportunity to perfect an appeal of the left knee effective date issue. The AOJ should only return this effective date issue to the Board for further review if the Veteran perfects an appeal. The Board by this remand makes no determination, expressed or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: 1. Schedule an examination with an appropriate clinician to determine the nature and etiology of the Veteran's claimed sleep apnea and bilateral hearing loss. After reviewing the claims file, including this remand, the examiner must address the following questions: (a.) Is it at least as likely as not that the Veteran's claimed sleep apnea was incurred in service, or is otherwise related to service? (b.) Is it at least as likely as not that the Veteran's claimed bilateral hearing loss was incurred in service, or is otherwise related to service? For each claimed disability, the examiner must clearly consider and discuss the Veteran's lay statements regarding the onset of his subjective symptoms. 2. Schedule an examination with an appropriate clinician to assess the current severity of the Veteran's service-connected left shoulder disability and bilateral knee disability (rated as patellofemoral syndrome with limitation of extension). 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). The examiner must also 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). 3. Review the examinations and medical opinions above to ensure substantial compliance with the Board's directives. Take any necessary corrective action. 4. Refer the Veteran's TDIU claim to VA's Director of Compensation Service for extraschedular consideration prior to July 10, 2015. 5. Readjudicate the Veteran's service connection, increased rating, TDIU and SMC claims in a supplemental statement of the case. Allow the Veteran and his representative the opportunity to respond. Then return the claims to the Board for further appellate review as necessary. 6. Issue a statement of the case with respect to the effective date for service connection for the Veteran's left knee disability. Allow the Veteran and his representative the opportunity to perfect an appeal of the left knee earlier effective date claim. Return the claim to the Board only if the Veteran perfects a timely appeal. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.Z. Wall, 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.