Citation Nr: 21006271 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 11-23 331 DATE: February 3, 2021 REMANDED Entitlement to service connection for a bilateral knee disorder is remanded. Entitlement to a rating in excess of 30 percent disabling for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 2001 to November 2008. He served honorably in the United States Army during the Gulf War Era, to include foreign service in Southwest Asia and Afghanistan. The Board thanks the Veteran and his family for his service to our country. This matter is before the Board of Veteran’s Appeals (Board) from a March 2009 rating decision (RD) and by the Department of Veteran Affairs (VA) Regional Office (RO). In April 2012, based on new medical evidence added to the Veteran’s claims-file since the initial grant of service connection in 2009, the RO increased the rating from noncompensable to a rating 30 percent disabling for his service-connected PTSD disability. See SSOC dated April 2012. In March 2016, the Veteran testified before the undersigned Veterans Law Judge at a Board videoconference hearing. A transcript of the hearing is of record. The Veteran waived RO consideration of any and all new evidence added to his file. At the hearing, a 60-day extension was granted. New evidence was submitted on or after the hearing date. In July 2016, this matter was previously before the Board at which time it was remanded to the Agency of Original Jurisdiction (AOJ) for further development. Specifically, the remand directives required the AOJ to: (1) send the Veteran a VCAA notice letter regarding TDIU and a VA form 21-8940, (2) obtain all outstanding VA and non-VA treatment records for his psychiatric and bilateral knee disabilities, and (3) schedule the Veteran for VA examinations and medical opinions for PTSD and bilateral knee disabilities. See BVA Decision dated July 2016. 1. Entitlement to service connection for a bilateral knee disorder is remanded. 2. Entitlement to a rating in excess of 30 percent disabling for posttraumatic stress disorder (PTSD) is remanded. The Board finds that additional development is necessary before a decision may be rendered on these issues on appeal. The Veteran contends that his bilateral knee disorder is related to military service. Specifically, he asserts that when he entered active duty service, he had no knee problems; he served for over seven years, including three combat tours; and since service, he has been diagnosed with bilateral knee arthralgia. See VA Form 21-4138 dated June 2012; VA Form 21-526 dated November 2008. Additionally, the Veteran seeks an increased rating for his service-connected PTSD disability. Specifically, he contends that since his last examination in 2011, his doctors have given him additional medication and his depression and anxiety have been constant. See Hearing Testimony dated March 2016. Pursuant to the July 2016 Board remand, in October 2016, the Veteran was scheduled VA examinations for PTSD and knee. However, based on the record, the Veteran was a no show for the scheduled VA examinations. Specifically, in a February 2017 VA Form 21-4138 and February 2017 VA Form 646 statement of accredited representative, the Veteran asserted that he did not receive notice of when the VA examinations were scheduled and requested that they be rescheduled. See VA Form 21-4138 dated February 2017; VA Form 646 dated February 2017. Based on the above, the Board finds that good cause has been shown for the Veteran’s failure to appear in his scheduled October 2016 VA knee and PTSD examinations. Further, the Board notes that the Veteran’s last VA examination for his PTSD was in December 2011. See C&P Exam dated December 2011. Accordingly, the Board will remand these claims for same examinations and medical opinions for a knee disorder and PTSD ordered by the Board in July 2016. The Veteran is hereby advised that failure to report for any scheduled VA examination without good cause shown may have adverse effects on his claim. 38 C.F.R. § 3.655. Additionally, the Veteran is advised that if he cannot attend the scheduled VA examination appointments, he should immediately notify the VA and request that they be rescheduled. Further, the Veteran is advised to look at every statement of the case (SOC) and/or SSOC, and if necessary, respond immediately. 3. Entitlement to a total disability rating based upon individual unemployability TDIU is remanded. The Board finds that additional development is necessary before a decision may be rendered on the issue on appeal. The Veteran contends that his service-connected PTSD and its symptoms forced him to forego full-time employment and to work on a part-time basis. See VA Form 21-8940 dated September 2016; Hearing Testimony dated March 2016. As noted above, the Board has remanded the issues of entitlement to rating in excess of 30 percent for PTSD and entitlement to service connection for a bilateral knee disorder. Because the Veteran does not presently satisfy the schedular requirements for a TDIU, pending development and adjudication of the aforementioned claims could significantly impact a decision on the issue of entitlement to a TDIU. 38 C.F.R. § 4.16(a). Accordingly, these issues are inexplicably intertwined and thus, a remand on the issue of entitlement to a TDIU is also warranted. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Please secure for the record copies of complete updated clinical records (any not already of record) of all VA and non-VA treatment the Veteran has received for his bilateral knee and PTSD disabilities on appeal. Please ask the Veteran to provide the releases necessary for VA to secure any adequately identified private treatment records (if applicable). 2. After the action in paragraph 1 is complete, please schedule the Veteran for an appropriate VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) and medical opinion for his bilateral knee disorder. The claims folder must be made available for review by the examiner in conjunction with the examination. Based on the examination and review of the record, the examiner should address the following: (a.) Whether it is at least as likely as not (50 percent or higher probability) that any currently diagnosed bilateral knee disorder was incurred in or related to active military service? In formulating this opinion, the examiner should consider the Veteran served for over seven years, with three combat tours in Southwest Asia, and claimed several days prior to service discharge that he had had knee problems/pain (in service) and has had a number of assessment since then for arthralgia of the knees warranting X-rays. If the basis of a negative opinion is the absence of evidence of treatment in the Veteran’s in-service medical records, the examiner must explain: (1) whether treatment for a bilateral knee disorder or its symptoms would have been noted in the Veteran’s treatment records at the time, and (2) whether the Veteran would have sought treatment for a bilateral knee disorder or its symptoms at the time. The examiner must provide a complete rationale for the opinion and conclusion reached, citing the objective medical findings leading to the conclusion. The examiner should take into consideration that the Veteran is competent to report in service and post-service symptom experiences. If an opinion cannot be provided without resort to speculation, the examiner should provide an explanation as to why this is so. 3. After the action in paragraph 1 is complete, please schedule the Veteran for an appropriate VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) and medical opinion for his PTSD. The Veteran’s claims-file must be made available to and reviewed by the examiner. (a.) Assess the current nature, extent and severity of his service-connected PTSD disability; and (b.) Address the impact of the PTSD on the Veteran’s functioning including in a work setting to include addressing the Veteran’s testimony that he has gone from full-time work repairing medical equipment to part-time work with the same company scrapping out units and helping the shipping/receiving manager ship boxes because of concentration issues, flashbacks, and anxiety. The examiner must provide a complete rationale for the opinion and conclusion reached, citing the objective medical findings leading to the conclusion. If an opinion cannot be provided without resort to speculation, the examiner should provide an explanation as to why this is so. 4. Thereafter, readjudicate the Veteran’s pending claims, to include the matter of TDIU, in light of any additional evidence added to the record. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. D. Hayes 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.