Citation Nr: 21006144 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 11-01 519 DATE: February 3, 2021 REMANDED Entitlement to an evaluation in excess of 10 percent for right knee chondromalacia prior to March 11, 2016 is remanded. Entitlement to an evaluation in excess of 10 percent for left knee chondromalacia prior to December 5, 2014 is remanded. Entitlement to an evaluation in excess of 30 percent for right total knee replacement (TKR) since May 1, 2017 is remanded. Entitlement to an evaluation in excess of 30 percent for total left TKR since February 1, 2016 is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the period prior to May 1, 2017 is remanded. REASONS FOR REMAND The Veteran had active service from August 1989 to December 1990. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2014, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing. A transcript of his testimony is of record. The Veteran was in receipt of a temporary total rating (TTR) for his right knee from March 11, 2016 until May 1, 2017 and a TTR for his left knee from December 5, 2014 until February 1, 2016. As those are the maximum ratings assignable, increased ratings for those periods are not for consideration. These matters were last before the Board in October 2019, when they remanded for additional development. While a January 2020 rating decision granted TDIU effective May 1, 2017, as the Veteran was not awarded a TDIU for the entire period on appeal, the issue of entitlement to TDIU for the period prior to May 1, 2017 remains in appellate status, and the Board has jurisdiction to consider this matter. Harper v. Wilkie, 30 Vet. App. 356 (2018). As noted above, the Veteran was in receipt of a TTR from December 5, 2014 until February 1, 2016 and from March 11, 2016 until May 1, 2017. Accordingly, a TDIU for those periods is not for consideration. Therefore, the periods for consideration for entitlement to a TDIU are from January 20, 2009 to December 4, 2014 and from February 1, 2016 to March 10, 2016. 1. Entitlement to an evaluation in excess of 10 percent for right knee chondromalacia prior to March 11, 2016 is remanded. 2. Entitlement to an evaluation in excess of 10 percent for left knee chondromalacia prior to December 5, 2014 is remanded. 3. Entitlement to an evaluation in excess of 30 percent for right TKR since May 1, 2017 is remanded. 4. Entitlement to an evaluation in excess of 30 percent for left TKR since February 1, 2016 is remanded. 5. Entitlement to a TDIU for the period prior to May 1, 2017 is remanded. The evidence indicates there may be outstanding relevant VA treatment records. A VA treatment record from January 8, 2020 indicates that the Veteran was to return for a follow up appointment in May 2020. VA treatment records subsequent January 8, 2020 have not been associated with the claims file. A remand to obtain the outstanding records is required. In the October 2020 Appellant Brief, the Veteran’s representative asserted that the June 2018 VA knee examination report was “too dated for evaluation purposes.” The only residual of the Veteran’s bilateral TKR that was noted in the June 2018 examination report was stiffness. In contrast, an August 23, 2019 VA treatment record noted that the Veteran’s residuals now included knee pain, swelling, and decreased range of motion. As such, the Board finds that the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his knee disabilities. Regarding the Veteran’s TDIU claim, the schedular requirements for the assignment of a TDIU pursuant to 38 C.F.R. § 4.16(a)(2) have not been met from for the period on appeal. The Board does not currently have jurisdiction to authorize an extraschedular rating in the first instance. Floyd v. Brown, 9 Vet. App. 88 (1996). It may, however, determine that a case warrants referral to the Director of Compensation for extraschedular consideration under 38 C.F.R. § 3.321(b) (2020) and 38 C.F.R. § 4.16(b) (2020). As the evidence suggests that the Veteran has been unemployed since August 2009, at least, in part due to his right and left knee disabilities, the Board finds that extraschedular referral under 38 C.F.R. § 4.16(b) (2020) is warranted. See e.g., March 2009 VA examination report (noting that the Veteran’s knee disabilities would have a significant effect on his occupational activities as they caused decreased mobility, problems with lifting and carrying, weakness or fatigue, decreased lower extremity strength, and pain); October 2009 Dr. Fraley statement (indicating the Veteran was completely and permanently disabled from his current occupation). The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities. After securing any necessary releases, request any relevant records identified. In addition, obtain updated VA treatment records dated since January 8, 2020. If any requested records are unavailable, the Veteran should be notified of such. 2. After the above record development is completed to the extent possible, schedule the Veteran for a VA knee examination to determine the current nature and severity of his service-connected right and left knee disabilities. The claims file should be reviewed in conjunction with the examination. All indicated tests should be conducted and the results reported. Range of motion testing should be undertaken, and should be tested actively and passively, in weight bearing, and after repetitive use. (a.) For each range of motion testing conducted for the right and left knee, the examiner must state where in the range of motion the Veteran reports that he begins to experience pain. If the examiner is unable to conduct any of 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. (b.) The examiner should also state whether there is likely to be additional range of motion loss due to flare-ups and due to pain, weakness, fatigability, or incoordination. If so, the examiner is asked to describe the additional loss, in degrees, if possible. In doing so, the examiner should elicit relevant information as to the Veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the Veteran's functional loss due to flares based on all the evidence of record, including the Veteran's lay information. (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). 3. After completing the above and any other development necessary, readjudicate the claims. If the Veteran's combined rating fails to meet the schedular requirements for TDIU, submit the case to the Director of the Compensation Service for consideration of an extraschedular evaluation for TDIU under 38 C.F.R. § 4.16(b) (2020). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Anderson 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.