Citation Nr: 21006660 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 17-36 006 DATE: February 4, 2021 REMANDED Entitlement to an increased evaluation in excess of 30 percent for right knee total arthroplasty is remanded. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1965 to January 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. By way of background, the Veteran filed a claim in September 2010 for his right knee medial meniscectomy, and service connection was granted in a July 2011 rating decision effective from September 20, 2010. The Veteran filed a claim for an increased rating for his right knee in January 2013, and with the recharacterization of the right knee as a total arthroplasty, service connection was granted in December 2013 with a 30 percent evaluation effective from January 8, 2013. The Veteran filed a claim for an increased rating again in December 2014, and the RO continued the previous 30 percent evaluation in March 2015 and May 2015 rating decisions. The Veteran filed a notice of disagreement with that 30 percent evaluation for his right knee in February 2016, and the matter is now before the Board. The Veteran, with his spouse, testified before the undersigned Veterans Law Judge (VLJ) in a virtual Board hearing in January 2021. A transcript of the hearing is of record. When a Veteran files a claim for an increased rating, he or she is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). Here, the Board notes the Veteran has claimed a TDIU. While the Board notes there was an earlier, temporary award of SMC due to the Veteran’s January 2013 right knee arthroplasty, there is no further lay or medical evidence the Veteran is housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb or blindness. 38 U.S.C. §§ 1114(s), (l), (k); 38 C.F.R. § 3.350(a), (b), (i). The Board finds that consideration of SMC is not inferred by the record, and as such will not be discussed. 1. Entitlement to an increased evaluation in excess of 30 percent for right knee total arthroplasty is remanded. The Veteran seeks a higher evaluation for his service-connected right knee disability, currently characterized as total right knee arthroplasty. The Veteran has asserted that a higher evaluation is warranted because of the degree of pain and physical limitations he endures on a daily basis, and that his knee joints are subject to excessive grinding and there is fluid buildup on each knee. The Veteran’s last formal VA examination for his knee was in May 2017. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In addition, since the Veteran’s right knee disability was last evaluated in a VA medical examination, the United States Court of Appeals for Veterans Claims (Court) issued a decision in Correia v. McDonald, 28 Vet. App. 158 (2016). In that decision, the Court held that the final sentence of 38 C.F.R. § 4.59 requires that VA musculoskeletal examinations include joint testing for pain on both active and passive motion, and in weight-bearing and nonweight-bearing (and, if possible, with range of motion measurements of the opposite undamaged joint). This type of joint testing was not accomplished during the Veteran’s most recent VA examination in May 2017; accordingly, further VA examination is warranted. The Board notes that the Veteran reports flare ups of his knee disability. The examiner is reminded that when Veteran reports flare ups of any disability, the examiner is asked to provide an opinion as to additional functional loss during flare-ups of the musculoskeletal disability, pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). A functional loss results when ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance” is inhibited. 38 C.F.R. § 4.40. Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. Additionally, the United States Court of Appeals for Veterans’ Claims (Court) recently addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. The Board also notes recent case law where the Court held that 38 C.F.R. § 4.59 does not solely condition the evaluation based on range of motion measurements for a particular diagnostic code, but rather “it conditions that award on evidence of an actually painful, unstable, or maligned joint or periarticular region and the presence of a compensable evaluation in the applicable diagnostic code.” Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016). The Board notes from the Veteran’s lay statements and Board testimony that his knee pain is chronic and severe, and that he has had to take increasing amounts of pain-relievers for his knee pain. 2. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded. It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). A total disability exists where there is any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. “A claim for TDIU is based on an acknowledgment that even though a rating less than 100 percent under the rating schedule may be correct, objectively, there are subjective factors that may permit assigning a 100 percent rating to a particular veteran under particular facts, notwithstanding the putative correctness of the objective rating.” Parker v. Brown, 7 Vet. App. 116, 118 (1994). Service connection has been established for posttraumatic stress disorder, evaluated as 30 percent disabling from November 29, 2010; right knee arthroplasty, evaluated as 30 percent disabling from March 1, 2014 prior to this remand; a lumbar spine disability, evaluated as 20 percent disabling from February 28, 2014; scars from shell fragment wounds, evaluated as 10 percent disabling from January 29, 1969, right leg varicose veins, evaluated as 10 percent disabling from June 21, 2007, left leg and right leg plantar fasciitis, each evaluated as 10 percent disabling from April 16, 2010, right lower extremity radiculopathy, evaluated as 10 percent disabling from February 28, 2014, tinnitus, evaluated as 10 percent disabling from August 8, 2018, and a noncompensable rating for a lumbar spine scar. The Veteran currently has a combined evaluation of 80 percent when including the effect of the combined ratings table, but with no single disability greater than 30 percent disabling. 38 C.F.R. §§ 4.16, 4.25. Thus, the Veteran does not meet the minimum schedular requirements for a TDIU under 38 C.F.R. § 4.16 (a). However, the Board notes from the medical record and the Veteran’s lay statements that the Veteran may be unemployable by reason of service-connected disabilities, but he currently fails to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). The Board cannot award TDIU under § 4.16(b) in the first instance, but must submit the matter to the Director, Compensation Service. See Anderson v. Shinseki, 22 Vet. App. 423, 428-29 (2009); Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (holding that the Board cannot award TDIU under 38 C.F.R. § 4.16 (b) in the first instance because it has no power to do so). As such, remand is necessary such that the RO can refer the Veteran’s case for a TDIU to the Director, Compensation Service. The matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any updated private or VA medical records identified and authorized for release by the Veteran. 2. After completion of the above, schedule the Veteran for a VA examination by an examiner with orthopedic expertise to determine the current nature and severity of his service-connected right knee disability. The claims folder must be made available to the examiner in conjunction with the examination. Any appropriate evaluations, studies, and testing deemed necessary by the examiner, to include appropriate imaging, should be conducted. The examiner should describe the nature and extent of the Veteran’s service-connected right knee disability, to include orthopedic and neurologic manifestations. For the examination provided for the right knee disability, the examiner is to specifically test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for both of the joints in question. See Correia v. McDonald, 28 Vet. App. 158 (2016). The VA examiner should conduct, consistent with 38 C.F.R. § 4.59, range-of-motion testing and provide commentary regarding symptoms, including painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during flare-ups. Any additional loss of motion with repetitive movement must be noted. The examiner should inquire as to periods of flare-ups, and note the frequency and duration of any flare-ups. The examiner must estimate the effect of all functional losses, including due to flare-ups, by equating the disability experienced due to such losses to additional loss of motion (stated in degrees) beyond what is shown clinically. The examination should be conducted in accordance with the current disability benefits questionnaire and consistent with Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Court explained that case law and VA guidelines anticipate that examiners will offer flare opinions based on estimates derived from information procured from relevant sources, including lay statements of veterans, to ascertain adequate information—i.e. frequency, duration, characteristics, severity, or functional loss—regarding his flares by alternative means. An examiner must do all that reasonably should be done to become informed before concluding that a requested opinion cannot be provided without resorting to speculation. 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 why that is so. In the scheduling and conduct of this VA examination for the right knee, attention is requested to the necessity of available oxygen during the knee examination for the Veteran due to a non-service-connected lung fibrosis condition. 3. After the readjudication of the Veteran’s right knee evaluation and the TDIU, if the TDIU remains denied at the regional office level, then refer the issue of entitlement to a TDIU to the Director, Compensation Service, for adjudication in accordance with 38 C.F.R. § 4.16(b). 4. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Setter, 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.