Citation Nr: 21006160 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 12-28 499 DATE: February 3, 2021 ORDER Entitlement to service connection for diabetes is denied. Entitlement to a 10 percent disability rating for a skin condition is granted from December 25, 2009 to January 25, 2010. Prior to December 25, 2009 and after January 25, 2010, a compensable disability rating for his skin disability is denied. Entitlement to a separate disability rating for 10 percent for the Veteran’s right knee instability under Diagnostic Code 5257 is granted. Entitlement to a separate disability rating for 10 percent for the Veteran’s left knee instability under Diagnostic Code 5257 is granted. REMANDED Entitlement to a disability rating in excess of 10 percent for the Veteran’s right knee disability under Diagnostic Code 5260 is remanded. Entitlement to a disability rating in excess of 10 percent for the Veteran’s right knee disability under Diagnostic Code 5260 is remanded. Entitlement to a disability rating greater than 10 percent for the Veteran’s left knee instability under Diagnostic Code 5257 is remanded. Entitlement to a disability rating greater than 10 percent for the Veteran’s right knee instability under Diagnostic Code 5257 is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence does not show that the Veteran’s diabetes was caused by his active duty service, including his exposure to contaminants in the Camp Lejeune water supply. 2. The Veteran took systemic medication for his skin condition for one week beginning after Christmas in December 2009. 3. Prior to December 25, 2009 and after January 25, 2009, the Veteran’s skin disability covered less than 5 percent of his body and did not require systemic therapy and topical therapy in the past year. 4. The Veteran’s right knee disability manifested as slight instability, painful extension, and painful flexion. 5. The Veteran’s left knee disability manifested as slight instability, painful extension, and painful flexion. CONCLUSIONS OF LAW 1. The criteria for service connection for the Veteran’s diabetes have not been met. 38 U.S.C. §§ 1110, 1131 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.309 (2020). 2. From December 25, 2009 to January 25, 2009, the criteria for a 10 percent disability rating for the Veteran’s skin disability were met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.118, Diagnostic Code 7806 (2018). 3. Prior to December 25, 2009 and after January 25, 2009, the criteria for a compensable disability rating for the Veteran’s skin disability have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.118, Diagnostic Code 7806 (2018), Diagnostic Code 7806 (2020). 4. The criteria for a separate 10 percent disability rating for right knee instability pursuant to Diagnostic Code 5257 have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.71a, Diagnostic Code 5257 (2020). 5. The criteria for a separate 10 percent disability rating for left knee instability pursuant to Diagnostic Code 5257 have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.71a, Diagnostic Code 5257 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Marine Corps from July 1980 to August 1988. In March 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ) and a transcript is of record. In May 2018, the Board remanded the Veteran’s case for the (AOJ) to obtain any outstanding service records showing the Veteran’s service at Camp Lejeune and obtain VA examinations. Additional service records were added to the record, the Veteran received new VA diabetes examinations in June 2020, and September 2020 and a skin examination in December 2019. In a November 2020 Appellant’s Post-Remand Brief, the Veteran’s representative stated that the examinations for his increased rating claims did not capture the impact of the Veteran’s disabilities on his daily life, but did not explain how. The December 2019 VA skin examination is adequate because it was based upon consideration of the Veteran’s pertinent medical history, lay assertions and current symptoms. At his December 2019 VA skin conditions examination, he described his skin condition. The examination reports describe skin condition in detail sufficient to allow the Board to make a fully informed determination. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). There has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran’s diabetes examination and opinion are adequate because the Veteran was examined and the clinician provided a rationale for the opinions rendered. The examiner specifically addressed the Veteran’s lay assertion that he had been informed that his diabetes had been present and untreated for many years. The examiner also addressed whether the Veteran’s diabetes was directly related to exposure to contaminated water at Camp Lejeune. In this decision, the Board grants 10 percent ratings for instability of each knee under Diagnostic Code 5257 and remands the issues of whether higher ratings are warranted because a new examination is being ordered. VA is free to bifurcate a claim and adjudicate it in separate pieces. Tyrues v. Shinseki, 23 Vet. App. 166, 186 (2009) (en banc), aff’d, 631 F.3d 1380 (Fed. Cir. 2011); rev’d on other grounds, 132 S.Ct. 75 (2011). Neither the Veteran nor his representative have raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2020); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Second, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the evidence in light of the entirety of the record. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2020). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 4 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). For veterans who served at Camp Lejeune, the diseases listed in and 38 C.F.R. § 3.309(f) are presumed to be associated with the contaminants present in the water supply at the Camp. 38 C.F.R. § 3.309(f) (2020). The Veteran had active service at Camp Lejeune and presumes exposure to the contaminated water. However, diabetes is not one of the diseases associated with Camp Lejeune service. Therefore, presumptive service connection is not warranted. See 38 C.F.R. § 3.309(e), (f) (2020). Nevertheless, when a claimed disorder is not included as a presumptive disorder, direct service connection may be established by evidence demonstrating that the disease was in fact incurred during service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In a June 2020 VA opinion, the examiner considered the Veteran’s exposure to contaminated water at Camp Lejeune as a cause for his diabetes. The examiner noted that there was nothing in the medical literature that showed the development of diabetes in service members after being stationed at Camp Lejeune. He also cited to several studies noting that there was inconclusive evidence linking the chemicals present in the water to diabetes. In reviewing the medical literature, the examiner only cited one study that reported increased levels of diabetes in select groups of people exposed to TCE, one of the chemicals in the water found at Camp Lejeune. However, he noted that this study did not distinguish between Type I and Type II diabetes, which the Veteran has. The examiner concluded that from a review of the currently available medical literature, it was less likely that the Veteran’s diabetes was due to exposure to the contaminated water. Moreover, the June 2020 examiner noted the Veteran’s multiple personal risk factors for developing diabetes. The examiner noted the Veteran’s weight, history of smoking, physical inactivity, hypertension, and hyperlipidemia. The examiner stated that the Veteran’s personal risk factors outweighed the minimal risk reported in the medical literature. Thus, the examiner opined that it was less likely than not that the Veteran’s diabetes was caused by his service at Camp Lejeune. The Veteran received another VA examination in September 2020. The examiner noted the Veteran’s statement at his Board hearing that he had elevated blood glucose readings in service greater than 400, and that he had previously been told that he had untreated diabetes for many years before being diagnosed. While the examiner could not find those readings in his service records, she acknowledged the Veteran’s elevated blood readings from December 1986 documented in the records. Nevertheless, the examiner concluded that the Veteran’s diabetes was not due to service. The examiner also noted the lack of medical literature linking diabetes and service at Camp Lejeune. Furthermore, she noted that diabetes has a strong connection to genetic and environmental factors, such as weight. Consequently, she opined that it was less likely than not that the Veteran’s diabetes was related to his active duty service. In considering the medical and lay evidence, the Board finds that the preponderance of the evidence is against the Veteran’s claim. The Board acknowledges the Veteran’s increased glucose readings in service as well as his exposure to contaminated water. However, as there is no universal rule as to competence on this issue, the Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 -77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Lay persons are competent to provide opinions on some medical issues. Id. at 435. The specific issue in this case, determining the etiology of his diabetes, falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 n.4. Determining the etiology of the Veteran’s disability requires medical inquiry into biological processes and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have medical training or skills. As a result, the probative value of his lay assertions is low. At his hearing, the Veteran testified that one and a half years ago, his health care provider told him that he was insulin resistant because he had been “diabetic for so long.” The claims file is absent for a probative positive opinion from the medical professional who provided this statement. Even assuming that the Veteran is a reliable historian and accurately asserts that such an opinion was provided, because it is not of record, the Board cannot assess the probative value of such a medical opinion. Specifically, the Board is unable to determine the factual basis or rationale supporting the reported opinion. The Veteran’s report that his physician told him that he had diabetes for a long time prior to his diagnosis in 2006 is not sufficiently persuasive to outweigh the findings of the VA examiner, who reviewed the record, examined the Veteran, and provided a complete rationale for her findings. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The VA opinions which are based on a review of the record and medical literature afforded the most probative weight. Therefore, as the preponderance of the probative evidence is against the Veteran’s claim, service connection for diabetes is not warranted. Increased Ratings Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.1, 4.20 (2020). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2020). Staged 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 (2007). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection for his skin condition and knee disabilities in November 2009. Fenderson v. West, 12 Vet. App. 119 (1999). 1. Skin Disability The Veteran’s skin disability is rated under Diagnostic Code 7806 for dermatitis. VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Prior to August 13, 2018, under Diagnostic Code 7806, a noncompensable rating is assigned for less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12 months. A 10 percent rating is assigned for at least 5 percent, but less than 20 percent, of the entire body, or; at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is assigned for 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly during the past 12-month period. A 60 percent rating is assigned for more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near- constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12- month period. For claims filed prior to August 13, 2018, the Court held that a systematic therapy is one that that affects the entire body in its treatment of the condition at issue, and that the Board must determine (1) whether a topical treatment affects the body as a whole in treating a veteran’s skin condition; and (2) whether the given treatment is “like” a corticosteroid or other immunosuppressive drug.” Burton v. Wilkie, 30 Vet. App. 286 (2018). Only the second question need be addressed if the treatment is clearly systemic. Id. Effective August 13, 2018, VA regulations explicitly state that systemic therapy is treatment that is administered through any route other than the skin, and topical therapy is treatment that is administered through the skin. 38 C.F.R. § 4.118(a). Additionally, effective August 13, 2018, a new General Rating Formula for the Skin applies to Diagnostic Code 7806. See 38 C.F.R. § 4.118. Under this formula, a noncompensable rating is assigned for no more than topical therapy required over the past 12-month period and at least one of the following: characteristic lesions involving less than 5 percent of the entire body affected; or characteristic lesions involving less than 5 percent of exposed areas affected. A 10 percent rating is assigned for at least one of the following: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12- month period. A 30 percent rating is assigned at least one of the following: characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is assigned for at least one of the following: characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC’s 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, General Rating for the Skin for DCs 7806, 7809, 7813-7816, 7820-7822, and 7824. The Veteran’s VA records document the treatment for his skin disability. His June 2010 VA records noted the Veteran had a rash on his right ankle, right forearm, and right shoulder. The rashes were noted at 1 to 2 mm in length, hyperpigmented, and produced no discharge. In September 2010, he received a VA examination and the examiner noted that the Veteran’s skin disability affected less than 5 percent of his body. He noted the Veteran had papules slightly elevated scarred on arm, shoulder, and chest that were nontender and not draining. The examiner did not state whether the Veteran used medication for his skin condition. The Veteran testified about his skin disability at his Board hearing. He reported dermatitis on his neck and scalp as well as purple spots on his chest and underarms. He reported that he would scratch his rashes which would leave scars and used cream given by his VA dermatologist. He also had rashes on right shoulder and chest that never goes away. Additionally, he reported that the rashes on his scalp would swell up for 2 to 3 days after he gets a haircut and his scalp is rubbed with clippers. His most recent VA examination was in December 2019. The examiner noted that he had recurrent bumps on his scalp and posterior neck. His skin disability had not been treated with medication in the past year. The examiner also noted that the Veteran had no skin lesions or eczema but had 2 lesions on his scalp and neck that were not clinically significant but recommended over the counter topical Polysporin for the Veteran. Period from December 25, 2009 to January 25, 2010. Oral metronidazole was prescribed for his skin condition in December 2009 to be taken for one week. A January 5, 2010 record noted that he delayed taking metronidazole until after Christmas and that he finished this “nearly one week ago.” Oral medication is systemic medication. He took it for one week. Because he had systemic therapy for a duration of less than six weeks during a 12 months period, the 10 percent criteria are met. This is the only period he received systemic medication for his skin condition. The 10 percent rating is granted from December 25, 2009 because it is not certain when he began his one week of treatment, other than that it was “after Christmas.” A one month period is granted for the purposes of payment. 38 C.F.R. § 3.31. After January 25, 2010, a noncompensable rating is assigned. For the period from December 25, 2009 to January 25, 2010, the 30 percent criteria were not met because the area requirements were not met and he did not have systemic therapy for six weeks or more. Period prior to December 25, 2009 and after January 25, 2009 For the period prior to December 25, 2009 and after January 26, 2009, the Board finds that the preponderance of the evidence is against the assignment of a compensable evaluation under the pre-August 13, 2018, regulations because the Veteran’s skin disability did not more nearly approximate at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. As noted by the September 2010 examiner less than 5 percent of his body was affected. The topical creams Clobetasol and Desonide were prescribed in June 2012 were in his medication list until October 2013. Clobetasol is a corticosteroid. Dorland’s Illustrated Medical Dictionary, 373 (32nd ed. 2012). Desonide is also a corticosteroid. Id. at 501. The evidence does not show that these medications operated by affecting his body as a whole. First, the Veteran’s medication list noted that he was to apply a “small amount” of Clobetasol and Desonide, showing that it was not applied to a large amount of his body. Additionally, the medical records do not show that he experienced side effects or other effects of these creams that impacted his body as a whole. He has not provided lay evidence indicating that these creams that were used in 2012 and 2013 impacted any part of the body other than those that he applied them to. There is no probative evidence that the Clobetasol and Desonide topical creams operated by effecting the body as a whole. He was prescribed antibiotics for a skin infection in September 2009, however the prescription was for two days and ended prior to the start of the appeal period in November 2009. He was prescribed an antibiotic cream in August 2014, but it was applied specifically to his toenails and not to the areas of the skin condition on appeal. The Board also finds that the preponderance of the evidence is against the assignment of a compensable evaluation under the August 13, 2018, regulations because the Veteran’s skin disability does not more nearly approximate characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy required for a total duration of less than 6 weeks over the past 12- month period. The December 2019 examiner noted the small area impact by the Veteran’s disability and that no medication had been prescribed in the past 12 months. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms and his reports of skin issues on his shoulder, neck and scalp at his Board hearing are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he does not assert, and medical treatment records do not show, that the Veteran’s disability more nearly approximates the criteria in the next higher rating. The Board has considered whether any other Diagnostic Codes related to disabilities of the skin would provide for a higher disability evaluation. However, the evidence does not reflect that he would warrant a higher rating under a different diagnostic code. See 38 C.F.R. § 4.118. Thus, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a compensable rating for his skin disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Right and Left Knee Disabilities The Veteran’s right and left knee disabilities are currently rated under Diagnostic Code 5260 for limitation of flexion of the leg. Under this Diagnostic Code, a noncompensable rating is warranted when flexion is limited to 60 degrees. A 10 percent rating is warranted when flexion of the leg is limited to 45 degrees. A 20 percent rating is warranted when flexion is limited to 30 degrees. A 30 percent rating is warranted when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a (2020). Normal flexion is 140 degrees. 38 C.F.R. § 4.71, Plate II (2020). The Board will consider Diagnostic Code 5257 for instability. Under this Diagnostic Code, a 10 percent rating is warranted when there is slight recurrent subluxation or lateral instability. A 20 percent rating is warranted when there is moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted when there is severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a (2020). Diagnostic Code 5257 is based upon instability and subluxation, not limitation of motion, as a result, the factors set forth in 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 do not apply. In September 2010, the Veteran received a VA examination. For both knees, no instability, giving way, flare-ups, or subluxation/dislocation was noted. He had no pain with his left knee testing but reported clicking and snapping. His next examination in June 2011 evaluated his left knee. The examiner noted that the Veteran’s knee would swell and lock, but there was no history of subluxation or dislocation. He continued to have problems with prolonged standing and walking. A private examination in March 2013 noted his worsening knee pain, especially at night. He reported no issues with stairs but experienced pain with deep squatting. His next VA examination was in February 2016. He complained that his right knee was worse than his left. The examiner noted that there was no evidence of instability or recurrent effusion. However, the Veteran reported regular use of a cane. His most recent VA examination was in December 2019. He continued to report that his right knee was worse than his left. He continued to report regular use of brace for support and stability. His right knee felt more unstable and gave out at times resulting in him falling. The examiner noted recurrent effusion in his left knee. Based on the evidence of record the Board finds a separate disability rating for the Veteran’s right and left knee instability is warranted. At his February 2016 VA examination he reported that he regularly used a cane. He also testified that at his March 2018 Board hearing that he was going to be receiving a brace for his knees. Then in December 2019, he reported that his right knee was giving way causing him to fall at times and the examiner noted recurrent effusion in his left knee. Accordingly, the Board finds that a 10 percent rating is warranted to compensate for the Veteran’s slight instability in both knees. Because the findings at the examination requested in the remand may impact the determination regarding whether a rating higher than 10 percent for either knee is warranted, that issue is addressed in the remand section below. REMAND Right and Left Knee Disabilities In its May 2018 remand, the Board specifically requested that the examiner conduct range of motion testing in the following areas: active, passive, weight-bearing, and non-weightbearing. This was done to comply with the holding in Correia v. McDonald, 28 Vet. App. 158 (2016). Active range of motion testing was performed. Regarding the other areas, the December 2019 examiner stated “Correia questions: N/A since both [k]nees are claimed and examined for rating purposes.” This is not a valid reason for not conducting range of motion testing for passive, weight-bearing, and non-weightbearing. There was not substantial compliance with the Board’s remand directives and a new examination is needed. TDIU Even considering the Veteran’s new disability ratings, the Veteran did not meet the schedular requirements for a TDIU. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reasons of service-connected disabilities shall be rated totally disabled. Therefore, in the case of veterans who are unemployable due to service-connected disabilities, but who do not meet these schedular percentage standards set forth in 38 C.F.R. § 4.16(a), the case should be submitted to the Director of the Compensation Service for extraschedular consideration. The Veteran’s service-connected disabilities, employment history, educational level, and vocational attainment must be considered. See 38 C.F.R. § 4.16(b). The Board finds referral to the Director of the Compensation Service for extraschedular consideration of a TDIU is warranted. The evidence shows the Veteran’s service-connected back disability, left hip disability, and bilateral knee disability prevented him from securing gainful employment. The Veteran’s treatment records and VA examinations documented how his disabilities interfered with his ability to walk, stand, or sit for prolonged periods. Additionally, the Veteran reported falling and having to use a cane. In his September 2010 VA examination, he noted that his chronic back and knee pain caused him to miss work. He also stated in a June 2011 VA examination that he last worked as a plumber and had to stop working because he was unable to lift due to his back and knees. Likewise, in a March 2013 note, his private doctor noted that the Veteran lost work because of his knee and left hip pain. As the evidence suggests that the Veteran was unable to work due to his service connected disabilities, the Board finds that consideration of an extraschedular TDIU in the first instance is necessary. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of right and left knee disabilities. The entire claims file must be made available to the examiner for review. Full range of motion testing must be performed where possible. The joint(s) involved should be tested in both active and passive motion, in weight-bearing and non weight-bearing. 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 the basis for this decision. If the Veteran reports flare-up episodes, the examiner must assess any additional functional loss during flare-ups. If an assessment is not possible without resorting to speculation based on the fact that the examination was not performed during a flare-up, the examiner must elicit relevant information as to the Veteran’s flare ups or ask him to describe the additional functional loss, if any, he has 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, or explain why he or she cannot do so. Sharp v. Shulkin, 29 Vet. App. 26 (2017). If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. It is not sufficient to abstain from providing an opinion because the Veteran is not examined after repetitive use over time or not examined during a flare up. 2. Refer the issue of entitlement to a TDIU to the Director of the Compensation Service for extraschedular consideration. Include a full statement as to the Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. See 38 C.F.R. § 4.16(b). 3. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Brunot, 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.