Citation Nr: 21008557 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 11-27 080 DATE: February 17, 2021 REMANDED Issue of entitlement to a rating higher than 20 percent for degenerative disc disease of the lumbar spine is remanded. Issue of entitlement to a rating higher than 10 percent for left knee strain with left medial meniscus posterior horn tear is remanded. Issue of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 2014 to June 2009. This appeal to the Board of Veterans’ Appeals (Board) arose from a May 2010 rating decision issued by the Department of Veterans Affairs (VA). See January 2011 Notice of Disagreement (NOD); July 2011 Statement of the Case (SOC); August 2011 Substantive Appeal (VA Form 9). The Veteran requested a hearing before the Board, but later withdrew his request. August 2011 VA Form 9; July 2014 VA Form 21-0820. 1. Issue of entitlement to a rating higher than 20 percent for degenerative disc disease of the lumbar spine is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the issue of entitlement to a rating higher than 20 percent for degenerative disc disease of the lumbar spine. The February 2018 Board decision remanded the issue for a VA examination on the Veteran’s lumbar spine condition, to including testing of the Veteran’s passive range of motion and in weight-bearing and nonweight-bearing states; or explain why the testing could not be conducted or deemed not necessary. The October 2019 VA examiner evaluated the Veteran’s lumbar spine, but did not discuss whether passive range of motion, weight-bearing, or nonweight-bearing, testing was performed. October 2019 VA examination for back conditions. As there has not been substantial compliance, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). In addition, the Board finds that clarification is needed as to whether the Veteran’s lumbar spine degenerative disc disease experiences symptom flare-ups. The October 2019 VA examiner found that the Veteran reported having no flare-ups of his lumbar spine disability. October 2019 VA examination for back conditions. However, the Veteran reported that he needs to “get up and move around” after sitting for a while. Id. During the May 2010 VA examination for back conditions, the Veteran also reported increased back pain from sitting, as well as walking, for more than a half hour. In his January 2011 NOD, the Veteran also reported being unable to stand or walk for more than five minutes due to his back pain, and pain when changing from sitting to a standing position. For the above reasons, the Board finds that the Veteran should be given another opportunity for a VA examination for his lumbar spine disability. 2. Issue of entitlement to a rating higher than 10 percent for left knee strain with left medial meniscus posterior horn tear is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the issue of entitlement to a rating higher than 10 percent for left knee strain with left medial meniscus posterior horn tear. The February 2018 Board decision remanded the issue for a VA examination on the Veteran’s left knee condition, to including testing of the Veteran’s passive range of motion and in weight-bearing and nonweight-bearing states; or explain why the testing could not be conducted or deemed not necessary. As with the Veteran’s lumbar spine, the October 2019 VA examiner did not discuss whether passive range of motion testing and testing while nonweight-bearing was performed. October 2019 VA examination for knee and lower leg conditions. The October 2019 VA examiner also found no reported flare-ups of his left knee disability, but the Veteran reported having pain and pressure in his left knee after walking or standing for 30 minutes. Id. During the May 2010 VA examination for knee and lower leg conditions, the Veteran reported left knee discomfort after sitting for more than 15 minutes or standing or walking for 20 to 30 minutes. The Board finds that the Veteran should be afforded another opportunity for a VA examination for his left knee disability as well. 3. Issue of entitlement to a TDIU is remanded. Finally, because a decision on the remanded issues above could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the issue of entitlemen tto a TDIU is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left knee and lumbar spine disabilities. 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). If the examiner is unable to conduct the required testing for either his left knee or lumbar spine or finds that the testing is not necessary in this case, a detailed explained about why should be provided. (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). The VA examiner should specifically consider and discuss the Veteran’s reported symptoms in the May 2010 and October 2019 VA examinations, and his January 2011 NOD, that he experiences pain in his back and left knee after sitting, standing, or walking for a period of time. (c) In addition, if possible, opine as to whether the Veteran experienced at least one month of convalescence after his 2013 and October 25, 2019 left knee surgeries. 2. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Lin 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.