Citation Nr: 21007852 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 09-48 591 DATE: February 10, 2021 REMANDED Entitlement to an evaluation in excess of 10 percent for left knee fractured patella status post-arthroscopy for meniscus repair (left knee disability) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1989 to April 1992, October 2001 to October 2002, January 2003 to February 2004, and July 2004 to September 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2008 rating decision by the Department of Veterans Affairs (VA). This case was remanded in July 2014 and August 2019 for further development; it has since been returned to the Board and re-assigned to the undersigned Veterans Law Judge. 1. Entitlement to an evaluation in excess of 10 percent for left knee fractured patella status post-arthroscopy for meniscus repair (left knee disability) is remanded. As mentioned in the Board’s August 2019 remand, VA examinations must include joint testing for active and passive motion in both weight-bearing and non-weight-bearing circumstances, to include for the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Also in its August 2019 decision, the Board found that the VA knee examinations that were of record as of the time that remand was issued do not fully comport with the requirements of Correia. See, e.g., April 2018 VA examination. Thus, the Board found that remand was necessary for a new VA knee examination. The Board directed the AOJ to arrange for an orthopedic examination of the Veteran to assess the current severity of his service-connected left knee disability. The Board specifically directed that “Range of motion measurements should be included for active and passive motion in both weight-bearing and non-weight-bearing circumstances, including for the opposite undamaged joint. If pain is noted, the point in the range of motion at which pain starts should be clearly noted.” The Veteran was afforded another VA knee examination in December 2019. However, after review of the examination report, the Board finds that it is unclear whether range of motion measurements were taken for active and passive motion, in both weight-bearing and non-weight-bearing circumstances, including for the opposite undamaged joint. Where the remand orders of the United States Court of Veterans Appeals or the Board of Veterans Appeals are not complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268, 269 (U.S. 1998). Based on the foregoing, the Board finds that this issue must be remanded once again so that the AOJ can obtain a VA knee examination including range of motion measurements for active and passive motion in both weight-bearing and non-weight-bearing circumstances, including for the opposite undamaged joint (if applicable). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. The Board finds that the issue of entitlement to TDIU is inextricably intertwined with the Veteran’s claim of entitlement to an evaluation in excess of 10 percent for left knee fractured patella status post-arthroscopy for meniscus repair (left knee disability). See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). As such, consideration of entitlement to TDIU must be deferred pending the outcome of the Veteran’s claim of entitlement to an evaluation in excess of 10 percent for left knee fractured patella status post-arthroscopy for meniscus repair (left knee disability). Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). The matters are REMANDED for the following action: 1. Obtain any of the Veteran’s updated VA treatment records. 2. Arrange for an orthopedic examination of the Veteran (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to assess the current severity of his service-connected left knee disability. The examiner must review the entire record in conjunction with the examination and note such review was conducted. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. All indicated tests or studies should be completed. Range of motion measurements should be explicitly included for active and passive motion in both weight-bearing and non-weight-bearing circumstances, including for the opposite undamaged joint. If pain is noted, the point in the range of motion at which pain starts should be clearly noted. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale based on the fact that the Veteran is not having a flare-up at the time of the examination will not be deemed adequate. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Banks, 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.