Citation Nr: 21006469 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 14-23 063 DATE: February 4, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for a left knee disability, characterized as shin splints, is remanded. Entitlement to an initial rating in excess of 10 percent for a right knee disability, characterized as shin splints, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had honorable active duty service from September 1999 to January 2001, and from June 2001 to July 2003. The Veteran also had dishonorable service from July 2003 to September 2007. The Board remanded these issues in March 2019 in order for the Agency of Original Jurisdiction (AOJ) to provide the Veteran a Statement of the Case (SOC) in connection with his claims for an effective date prior to August 27, 2013 for the grant of service connection for left and right knee disabilities. There has been substantial compliance with the March 2019 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). These matters are properly before the Board for adjudication. The AOJ issued a SOC in April 2020. However, the Veteran did not perfect his appeal within 60 days of the date on the SOC. As such, the claims for an effective date prior to August 27, 2013 for the grant of service connection for left and right knee disabilities are not before the Board. Additionally, the Board acknowledges receipt of the Veteran’s written withdrawal of his request for a Board hearing in October 2015. Thus, the Veteran’s hearing request is deemed as withdrawn. 38C.F.R. §20.603(e). The undersigned Veterans Law Judge has been assigned to consider this appeal pursuant to 38C.F.R. §20.106(a). Entitlement to an initial rating in excess of 10 percent for a left and right knee disability, characterized as shin splints, and TDIU are remanded. The Board notes that the Veteran was last afforded a VA examination in March 2014. However, thereafter, the Court issued Correia v. McDonald, 28 Vet. App. 158 (2016), holding that VA examinations for musculoskeletal disabilities should include joint testing for pain on both active and passive motion and on weight-bearing and nonweight-bearing. Here, the examiner did not provide results of all required musculoskeletal testing, as provided under Correia. Specifically, though the examiner reported range of motion testing, she did not note whether such testing was on active or passive range of motion testing or on weight-bearing or nonweight-bearing. Upon remand, the Board requests that the Veteran’s musculoskeletal examination comply with the Correia. Additionally, in his January 2019 Appellate Brief, the Veteran’s authorized representative reported that the VA examiner did not use a goniometer, where a goniometer is required. A review of the March 2014 report does not show whether a goniometer was actually used. On remand, a goniometer should be used for range of motion testing on active motion, passive motion, weight-bearing, and nonweight-bearing. Consideration of entitlement to a TDIU is dependent upon the impact of the Veteran’s service-connected disabilities on his ability to obtain or retain substantially gainful employment. Accordingly, the matter of a TDIU is inextricably intertwined with the Veteran’s service connection claim remanded herein. Harris v. Derwinski, 1 Vet. App. 180 (1991). Remand of the inextricably intertwined TDIU claim is, thus, also required. The Board requests that, on remand, the AOJ, again, ask the Veteran to provide contact information for all former employers so that VA may obtain a completed VA Form 21-4192, Request for Employment Information. The Board reminds the Veteran that “[t]he duty to assist is not always a one-way street,” Wood v. Derwinski, 1 Vet. App. 190 (1991), and his assistance is required to obtain the information necessary to reach a fully informed decision concerning the resolution of his claim. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from May 2020 to the present. 2. Ask the Veteran to provide information for all former employers on a VA Form 21-8940. Notify the Veteran that his claim for entitlement to TDIU may be considered abandoned if the VA Form 21-8940 is not filled out completely and returned. After the Veteran provides contact information for the aforementioned employers, request that any identified employer complete a VA Form 21-4192, Request for Employment Information. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left and right knee impairments. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the 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), or the examiner (does not have the knowledge or training). (Continued on the next page)   (b.) The examiner must also 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 at all 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), or the examiner (does not have the knowledge or training). Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mohammad Mahmoudi, 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.