Citation Nr: 21075149 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 16-54 625 DATE: December 17, 2021 REMANDED Entitlement to a disability rating higher than 10 percent for a left knee disability is remanded. Entitlement to a disability rating higher than 10 percent for a right knee disability before November 6, 2020, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1996 to October 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Although the Veteran initially asked for a hearing before the Board, she withdrew her request in April 2019. She reiterated her desire for the Board to proceed without a hearing three months later. As a result, her hearing request is considered withdrawn. 38 C.F.R. § 20.704. In January 2019, the Board remanded the Veteran's claim for additional development. In November 2020, the Veteran submitted a formal application for TDIU where she indicated that her service-connected disabilities, including her knee problems, preclude employability. Accordingly, the issue of entitlement to TDIU has been added to the appeal pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (per curiam). 1. Entitlement to a disability rating higher than 10 percent for a left knee disability is remanded. 2. Entitlement to a disability rating higher than 10 percent for a right knee disability before November 6, 2020, is remanded. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. "[S]taged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings." Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). So far, the Veteran has undergone three knee and lower leg condition examinations during the appeal period. At the first, she reported flare-ups and described experiencing increased pain and swelling during a flare. Despite this, the examiner did not offer a flare opinion. At the next two, the Veteran denied flareups. However, it is not clear whether the Veteran's denial means she never experienced flare-ups or is no longer experiencing them. If she used to experience them (i.e., her condition has improved), staged ratings may be warranted. Because there is no adequate flare opinion, the Board cannot make a fully informed decision on the appropriate disability rating for the Veteran's bilateral knee disability. Accordingly, remand is necessary for another examination. 38 C.F.R. § 4.2. Two claims are inextricably intertwined where a decision on one issue would have a "significant impact" on another. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Naturally, the examination results on the severity of the Veteran's bilateral knee disability (including past flare-ups) may have a "significant impact" on her individual unemployability claim. As such, the Veteran's TDIU claim is inextricably intertwined with her increased rating claim and must be remanded as well. Finally, as the case is being remanded for additional development, any outstanding VA treatment records should be associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (per curiam). The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination to determine the nature and severity of her bilateral knee disability. The claims file should made available to examiner for review, and all indicated testing should be performed. All pertinent symptomatology and findings must be reported in detail. The examiner should provide the range of motion of the Veteran's bilateral knee disability and comment on the degree of functional loss due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. The examiner should report the point at which pain is objectively recorded. In doing so, the examiner should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when her knees are used repeatedly over time. Such determination should, if feasible, be portrayed in terms of degree of additional range of motion loss due to pain on use or during flare-ups. This information must be derived from testing for pain on both active and passive motion, with weight-bearing and without weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The examination report must confirm that all such testing has been made and reflect the results of the testing. 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. If the Veteran denies currently experiencing flare-ups, the examiner must ask the Veteran about her past flare-ups and their severity, frequency, duration, precipitating and alleviating factors and extent of functional impairment. If feasible, the examiner should provide an estimated range of motion during a flare based on a review from relevant sources, including the Veteran's lay statements describing her functional limitation. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. (Continued on next page) 3. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran's pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and her attorney should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. Jenna Brant Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Canedy, 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.