Citation Nr: 21077105 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 17-62 849 DATE: December 28, 2021 REMANDED Entitlement to an initial disability rating in excess of 10 percent for left knee instability is remanded. Entitlement to a disability rating in excess of 10 percent for patellofemoral pain syndrome with arthritis of the left knee prior to October 26, 2017 is remanded. Entitlement to a disability rating in excess of 20 percent for patellofemoral pain syndrome with arthritis of the left knee from October 26, 2017 is remanded. Entitlement to a disability rating in excess of 10 percent for patellofemoral pain syndrome with arthritis of the right knee prior to October 26, 2017 is remanded. Entitlement to a disability rating in excess of 20 percent for patellofemoral pain syndrome with arthritis of the right knee from October 26, 2017 is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1969 to August 1969. The Veteran attended a hearing before the undersigned Veterans Law Judge in August 2021. A transcript of the hearing is of record. 1. Entitlement to an initial disability rating in excess of 10 percent for left knee instability is remanded. 2. Entitlement to a disability rating in excess of 10 percent for patellofemoral pain syndrome with arthritis of the left knee prior to October 26, 2017 is remanded. 3. Entitlement to a disability rating in excess of 20 percent for patellofemoral pain syndrome with arthritis of the left knee from October 26, 2017 is remanded. 4. Entitlement to a disability rating in excess of 10 percent for patellofemoral pain syndrome with arthritis of the right knee prior to October 26, 2017 is remanded. 5. Entitlement to a disability rating in excess of 20 percent for patellofemoral pain syndrome with arthritis of the right knee from October 26, 2017 is remanded. The Veteran seeks ratings in excess of 10 percent prior to October 26, 2017 for his service-connected left and right knee disabilities, and ratings in excess of 20 percent from October 26, 2017 for his left and right knee disabilities. The Veteran also seeks entitlement to a disability rating in excess of 10 percent for left knee instability. The Veteran had an examination for his left and right knee disabilities in October 2017. The examiner noted that the Veteran experienced flare-ups. The examiner noted that the examination was not conducted during a flare-up. However, the examiner stated that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during flare-ups. Furthermore, the examiner was unable to say without mere speculation as to whether pain, weakness, fatigability, or incoordination significantly limit functional ability with flare-ups. In Sharp v. Shulkin, 26 Vet. App. 26 (2017), the United States Court of Appeals for Veterans Claims clarified the responsibilities of a VA examiner and the Board when an examiner is asked to provide an opinion as to additional functional loss during flare-ups of musculoskeletal disability pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). Case law and VA guidelines anticipate that examiners will offer flare-up opinions based on estimates derived from information procured from relevant sources, including lay (non-expert) statements. An examiner must do all that reasonably should be done to become informed before concluding that a requested opinion cannot be provided without resorting to speculation. Sharp found a VA examination to be inadequate because the examiner, although acknowledging that the appellant was not then suffering from a flare of any of his conditions, failed to ascertain adequate information, such as frequency, duration, characteristics, severity, and functional loss, regarding the flare-ups by alternative means. As such, the Veteran's claim must be remanded to obtain a new medical examination that appropriately address the Veteran's flare-ups according to the guidelines of Sharp. 6. Entitlement to a TDIU is remanded. At the August 2021 Board hearing, the Veteran testified that his ability to work full-time as a truck driver has been affected by his service-connected bilateral knee disabilities. Where a claimant, or the record, raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Board finds the issue of entitlement to TDIU was raised by the Veteran at the August 2021 Board hearing; therefore, the Board has jurisdiction over this issue as well as the increased rating issues on appeal. A total disability rating may be granted where the schedular rating is less than 100 percent and the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one service-connected disability, or two or more with the same etiology or affecting the same body system, the disability rating must be 60 percent or more. Id. If there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more. Id. The Board notes that, currently, the Veteran does not meet the threshold schedular requirements for a TDIU. However, the Board is remanding the Veteran's claims for increased ratings for his service-connected bilateral knee disabilities, and it is possible that the Veteran shall be awarded a disability rating such that he will then meet the schedular requirements for a TDIU. If, however, on remand and readjudication of the Veteran's increased rating claim, the TDIU threshold schedular are not met, the AOJ should refer the Veteran's case to the Director of VA's Compensation Service for consideration of an extraschedular TDIU rating. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left and right knee disabilities. The examiner should provide a full description of the Veteran's left and right knee disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities, including under the rating criteria. The examiner should test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner should estimate any functional loss in terms of additional degrees of limited motion experienced during flare-ups and after repetitive use over time, based on the Veteran's description as to the severity, frequency, and duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time. To the extent possible, the examiner should identify any symptoms and functional impairments due to each disability alone and discuss the effect of the Veteran's disabilities on any occupational functioning and activities of daily living. 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). 2. Once the above development has been completed and the Veteran's increased rating claims have been readjudicated, give the Veteran an opportunity to submit a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) in addition to any additional evidence that is relevant with regard to a claim for a TDIU. The AOJ shall take all appropriate action to develop and adjudicate the Veteran's claim of entitlement to a TDIU with consideration of the Veteran's statement that his bilateral knee disabilities affect his ability to obtain and maintain substantially gainful employment. 3. If after readjudication of the Veteran's increased rating claims, the assigned disability ratings for his service-connected disabilities do not meet the TDIU threshold percentage requirements, refer the Veteran's claim of entitlement to a TDIU to the Director of Compensation Service for consideration of a TDIU on an extraschedular basis. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David M. Sebstead, 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.