Citation Nr: 21076262 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 15-06 598A DATE: December 22, 2021 REMANDED The claim of entitlement to a rating in excess of 10 percent for service-connected hypertension is remanded. The claim of entitlement to a rating in excess of 10 percent for degenerative joint disease of the left knee is remanded. The claim of entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Army from July 1985 to June 1999. The instant matter is on appeal from a May 2012 rating decision. In October 2018, the Veteran testified before the undersigned in a videoconference hearing. A transcript of the proceedings has been associated with the record. The Board remanded these issues in April 2019 for additional evidentiary development. During the development phase, the Regional Office granted entitlement to service connection for sleep apnea and a left hip disability. Those grants of service connection constitute grants of full benefits on appeal; thus, those issues are no longer before the Board. The Regional Office additionally granted entitlement to service connection for left knee instability effective the date of the Veteran's claim for an increased left knee rating, as well as service connection for limitation of extension of the left knee effective November 1, 2018. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU rating is part of an appeal for an increased rating claim when such claim is raised by the record. Here, the Board notes that the Veteran's representative has raised the issue of unemployability. As such, the Board finds that the record raises a claim for TDIU. 1. The claims of entitlement to increased ratings for hypertension and degenerative joint disease of the left knee are remanded. The Board sincerely regrets the additional delay, but remand is again necessary in order to obtain a current assessment of the Veteran's disabilities on appeal. In the November 2021 Appellate Brief, the Veteran's representative specifically asserted that his disabilities on appeal had worsened since previous VA examinations. The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability or that the currently assigned disability rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). In the present case, the Veteran's representative has reported that the Veteran's disabilities have worsened. As such, a new VA examination is warranted to assess the present severity of the Veteran's hypertension and left knee disability. 2. The claim of entitlement to a TDIU is remanded. As the Veteran is asserting entitlement to TDIU, the Board finds that this issue is inextricably intertwined with the resolution of the remanded issues. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, this issue is remanded for readjudication following evidentiary development. The matters are REMANDED for the following action: 1. Obtain any relevant, outstanding VA treatment records that are not already associated with the claims file. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). All attempts to contact the Veteran should be documented in the record. 2. Contact the Veteran and the representative of record in order to identify any outstanding non-VA treatment records regarding the issues on appeal. If non-VA providers are identified, obtain releases for those records. Make all reasonable attempts to obtain the non-VA treatment records and associate them with the claims file. If such records cannot be obtained, inform the Veteran and the representative of record, and afford an opportunity to provide these outstanding records. 3. Request that the Veteran complete a VA Form 21-8940, Application for TDIU. Obtain clarification from the Veteran regarding his work history, to include a statement as to his current employment status. All actions to obtain the requested information should be documented in the claims file. 4. Once the aforementioned evidentiary development is complete, schedule the Veteran for a VA examination to determine the nature and severity of his left knee disability. A complete copy of the claims file must be made available to the examiner. The examiner should take a thorough history of observable symptomatology from the Veteran. The examiner must consider the Veteran's lay statements regarding observable symptomatology associated with his left knee disability. After a thorough review of the medical and lay evidence of record is complete, the examiner should discuss the following: (a.) Describe the current nature and severity of the Veteran's left knee disability, including any and all diagnoses pertaining to his left knee. Indicate whether any new diagnosis is a progression of his service-connected disabilities. (b.) Assess both active and passive range of motion, as well as range of motion on weight-bearing and non-weight bearing. These ranges of motion must also be assessed for the Veteran's right knee. If possible, estimate range of motion after repetitive use and during flare ups based upon observations in the examination and the Veteran's lay reports of symptoms. (c.) If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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). (d.) Discuss the functional limitation, if any, of the Veteran's left knee disability with consideration of the Veteran's lay statements regarding his experienced limitations due to symptomatology. (e.) If possible, provide a retrospective opinion regarding the severity of the Veteran's left knee disability since June 2011. If possible, discuss any instability and its severity and/or limitations in extension according to the relevant rating criteria. The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 5. Once the aforementioned evidentiary development is complete, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected hypertension. 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. (Continued on the next page) 6. Following completion of the foregoing, the AOJ should review the record and readjudicate the claims on appeal. If any remain denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and his representative an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Fisher, 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.