Citation Nr: 21005895 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 17-32 317 DATE: February 2, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the lumbar spine is remanded. Entitlement to an initial rating in excess of 10 percent for a left knee anterior cruciate ligament (ACL) tear with patellofemoral pain syndrome is remanded. Entitlement to an initial compensable rating for right knee patellofemoral pain syndrome is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.   REASONS FOR REMAND The Veteran served honorably in the Army from September 2000 to January 2015. This appeal to the Board originates from an August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran recently testified in support of these claims during a December 2020 virtual hearing before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. 1. Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the lumbar spine is remanded. 2. Entitlement to an initial rating in excess of 10 percent for a left knee ACL tear with patellofemoral pain syndrome is remanded. 3. Entitlement to an initial compensable rating for right knee patellofemoral pain syndrome is remanded. While testifying during his recent December 2020 virtual hearing before this Board, the Veteran discussed how these three service-connected disabilities have worsened significantly since he was last examined concerning them in July 2015 and February 2016, so some 5 to 5½ year ago. He therefore should be reexamined to reassess the severity of these service-connected disabilities. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). This is especially true, not just because of the amount of time that has passed since those prior examinations, but also because, as concerning his low back disability, he also testified that he since had to stop working as a firefighter in January 2019 because of this disability and even subsequently underwent low back surgery in January 2020 involving a fusion of the L3, L4, and L5 vertebrae and laminectomy. As well, the Veteran indicated during his hearing that VA already has the records of his evaluation and treatment since his surgery because he submitted them, personally, so these additional records need to be considered when reexamining him on remand. Entitlement to a TDIU also is remanded. Because, in his hearing testimony, the Veteran alleged that he is now unemployable because of his service-connected disabilities at issue in this appeal, he has raised an additional (i.e., derivative) claim of entitlement to a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). This claim is “inextricably intertwined” with the claims for higher initial ratings for his low back and left and right knee disabilities, so consideration of this TDIU claim must be deferred pending completion of the development being directive concerning those other claims. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc). Moreover, when reexaming him, on remand, the examiner also will have opportunity to comment on the functional impact of the service-connected disabilities – which, in turn, will assist VA adjudicators in determining whether the Veteran is entitled to this additional TDIU benefit. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013); Accordingly, these claims are REMANDED for the following action: 1. Develop the additional TDIU claim that also has been raised, including by having the Veteran complete and return a TDIU application (VA Form 21-8940). 2. Then have him reexamined to reassess the severity of his service-connected low back and left and right knee disabilities. The examiner must provide a full description of these disabilities and report all signs and symptoms associated with them necessary for evaluating these disabilities under the applicable rating criteria. (a.) 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), the examiner (does not have the knowledge or training), or whatever other reason precludes responding with a sufficient level of certainty. (b.) In addition, the examiner must 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 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), the examiner (does not have the knowledge or training), or whatever other reasons precludes responding with a sufficient level of certainty. (c.) As well, the examiner is asked to comment on the functional impact of these disabilities to, in turn, assist VA adjudicators in determining whether they render the Veteran unemployable – meaning no longer capable of obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison. To assist in making these important determinations, the claims file, including a complete copy of this remand, must be made available to the examiner for review and consideration of the relevant history. When responding, whether favorably or unfavorably, it is essential the examiner provide explanatory rationale – preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. B. Kucera 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.