Citation Nr: 21007643 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 20-16 360 DATE: February 10, 2021 REMANDED Entitlement to a rating in excess of 10 percent for service-connected right knee based upon limitation of flexion is remanded. Entitlement to a rating in excess of 30 percent for service-connected right knee based upon limitation of extension is remanded. Entitlement to a rating in excess of 40 percent for service-connected radiculopathy of right lower extremity is remanded. Entitlement to a rating in excess of 40 percent for service-connected radiculopathy of left lower extremity is remanded. Entitlement to an effective date earlier than March 31, 2014 for the assignment of a total rating based upon individual unemployability (TDIU) is remanded. Entitlement to an effective date earlier than March 31, 2014 for the establishment of education benefits under Chapter 35, Title 38, United States Code (Dependents’ Education Assistance (DEA)) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1968 to January 1985, which included service in the Republic of Vietnam. He is a recipient of the Combat Infantry Badge, among other awards and decorations. The present matter is before the Board of Veterans’ Appeals (Board) originally on appeal from a February 2016 decision review officer (DRO) decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. 1. Entitlement to a rating in excess of 10 percent for service-connected right knee based upon limitation of flexion is remanded. 2. Entitlement to a rating in excess of 30 percent for service-connected right knee based upon limitation of extension is remanded. 3. Entitlement to a rating in excess of 40 percent for service-connected radiculopathy of right lower extremity is remanded. 4. Entitlement to a rating in excess of 40 percent for service-connected radiculopathy of left lower extremity is remanded. The record indicates that the Veteran’s service-connected right knee and radiculopathy of both lower extremities may have increased in severity since the most recent VA examinations in January 2016. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). In this respect, the Board notes that the Veteran submitted a vocational assessment and the Veteran reported additional symptomatology concerning his lower extremities. Further, it does not appear the evaluation of the right knee is in full compliance with the holdings of Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). In light of the foregoing, a remand is required to accord the Veteran new examinations of his service-connected right knee and radiculopathy of the lower extremities. See Allday v. Brown, 7 Vet. App. 517, 526 (1995); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). 5. Entitlement to an effective date earlier than March 31, 2014 for the assignment of TDIU is remanded. It is the established policy of VA 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 will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. A total disability may or may not be permanent. Total ratings will not be assigned, generally, for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule. 38 C.F.R. § 3.340(a). A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a). In this case, the Veteran is currently service connected for posttraumatic stress disorder (PTSD), evaluated as 70 percent disabling from March 31, 2014; radiculopathy of the right lower extremity, evaluated as 40 percent disabling from January 22, 2016; radiculopathy of the left lower extremity, evaluated as 40 percent disabling from January 22, 2016; limited extension of the right knee, evaluated as 30 percent disabling from January 22, 2016; lumbar spine evaluated as zero percent disabling (noncompensable) from January 26, 1985, and 20 percent from May 4, 1999; left knee evaluated as 10 percent disabling from January 26, 1985; other right knee impairment including limited flexion evaluated as 20 percent from January 26, 1985, 10 percent from November 1, 1987, 20 percent from May 4, 1999, and 10 percent from January 22, 2016; atypical chest pain evaluated as 10 percent disabling from January 26, 1985; as well as right ear hearing loss and hand lesions, both evaluated as noncompensable from January 26, 1985. His overall combined rating has been 40 percent from January 26, 1985; 30 percent from November 1, 1987; 50 percent from May 4, 1999; 90 percent from March 31, 2014; and 100 percent from January 22, 2016. The RO awarded TDIU effective from the date the Veteran first satisfied the schedular requirements for consideration of such in accord with 38 C.F.R. §§ 3.340, 4.16(a), which is March 31, 2014. However, a TDIU may also be awarded on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). In fact, the Veteran's attorney contended in the August 2016 Notice of Disagreement (NOD) that such was warranted from 2008; and referred to a private medical opinion dated in December 2014 from a Dr. Miller in support of that contention. The Board also notes that it had previously found in a February 2014 decision that the underlying issue of entitlement to TDIU had been raised in accord with Rice v. Shinseki, 22 Vet. App. 447 (2009) from at least the time of a May 2007 VA examination. The Board remanded the issue of entitlement to TDIU in February 2014 and February 2015, and that benefit was granted via the February 2016 DRO decision that is the subject of this appeal. The Board acknowledges that the RO concluded in an March 2020 Statement of the Case (SOC) that the Veteran’s TDIU claim did not warrant extraschedular consideration. However, the Board finds that this case does, in fact, warrant referral to the Director of Compensation for initial consideration of a TDIU on an extraschedular basis. A remand is required. 6. Entitlement to an effective date earlier than March 31, 2014 for the establishment of basic eligibility for Chapter 35 (DEA) benefits is remanded. Basic eligibility for Chapter 35 benefits for the child or surviving spouse of a veteran may be established if: (1) the veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the veteran's death; or (4) the veteran died as a result of a service-connected disability. 38 U.S.C. §§ 3500, 3501, 3510; 38 C.F.R. § 3.807. In this case, basic eligibility for Chapter 35 (DEA) benefits has been established based upon when the Veteran was found to be permanently and totally disabled; i.e., when TDIU was awarded. As such, this claim is inextricably intertwined with the TDIU claim. Accordingly, and because the TDIU claim is being remanded, the Board will remand the DEA claim as well. See, e.g., Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on an appellant's claim for another issue). The matters are REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issues on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran and his attorney should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for examinations of his right knee and radiculopathy of the lower extremities. The examiner(s) should provide a full description of the Veteran's associated functional impairments as they relate to the relevant rating criteria. The examination of the right knee must include testing for pain on both active and passive motion, in weight bearing and non-weight bearing. The right knee examiner must also attempt to elicit information regarding functional loss due to flare-ups and repeated use over time. If the Veteran suffers from such loss, the examiner should express the loss in terms of degrees of additional loss in range of motion (i.e., in addition to that observed clinically), if feasible, taking into account all of the evidence, including the Veteran’s competent statements with respect to the frequency, duration, characteristics, and severity of his limitations. Governing law requires that if the Veteran is not exhibiting functional loss due to flare-ups and/or repeated use over time, examiners will nevertheless offer opinions with respect to functional loss based on estimates derived from information procured from relevant sources, including lay statements of the Veteran. An examiner must do all that reasonably should be done to become informed before concluding that an opinion cannot be provided without resorting to speculation. That said, if it is the examiner’s conclusion that he or she cannot feasibly provide the requested opinion(s), even considering all of the available evidence, it must be so stated, and the examiner must provide the reasons why offering such opinion(s) is not feasible. 4. Refer the Veteran’s case to the Director of the Compensation Service for consideration of whether TDIU is warranted on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) for any or all of the period from 2008 to March 31, 2014. 5. After completing the above, and any other development as may be indicated, the issues on appeal should be readjudicated based on the entirety of the evidence. The decision on the claim for an earlier effective date for assignment of TDIU should reflect consideration of the December 2014 private medical opinion from Dr. Miller, and other evidence that the Veteran was unemployable from 2008. If any benefit sought remains denied, the Veteran and his attorney should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. JESSICA SEAY Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board John Kitlas, 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.