Citation Nr: 21009009 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 16-46 260 DATE: February 18, 2021 REMANDED Entitlement to a rating greater than 10 percent for a left knee disability is remanded. Entitlement to a total disability based upon individual unemployability (TDIU) prior to July 24, 2019 is remanded REASONS FOR REMAND The Veteran served on active duty from December 1982 to January 1990. 1. Entitlement to a rating greater than 10 percent for a left knee disability is remanded. The Veteran contends that her left knee disability warrants a rating greater than 10 percent. The Board is unable to make an informed decision on the increased rating claim because the November 2020 VA examination did not comply with the Board’s October 2019 remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). The October 2019 remand requested the examiner to estimate any additional loss of range of motion (ROM) in degrees. This information is necessary to appropriately assess the severity of the Veteran’s left knee disability for VA rating purposes. On remand a new VA examination should be given with an opinion that that provides an estimate additional loss of ROM in degrees after repetitive use or during flare-ups. 2. Entitlement to TDIU is remanded. The TDIU claim is part of the increased rating claims and is properly before the Board. See Rice v. Shinseki 22 Vet. App. 447 (2009). Although TDIU was recently awarded from July 2019, the period prior to that date is still before the Board, as part of the claims pending since March 2013. The Veteran testified at her July 2019 Board hearing that she has not been able to work since 2009 due to her service-connected disabilities. Consideration of TDIU claim before July 2019 is inextricably intertwined with the claims being remanded and adjudication must be deferred. The matters are REMANDED for the following action: 1. Schedule the Veteran for the appropriate VA examination to assess the severity of her service-connected left knee disability. Copies of all pertinent medical records should be made available to the examiner for review. The examiner must make determinations regarding range of motion, including any additional functional impairment. The appropriate Disability Benefits Questionnaire (DBQ) should be use if possible. If the Veteran reports flare-ups, the examiner should ask the Veteran to describe the factors that precipitate a flare-up and the frequency, duration, and severity of any flare-ups. The examiner should use that information to comment on the functional limitations caused by pain and any other associated symptoms. Such comments should include whether there was additional limitation of motion following repetitive testing due to pain, weakness, fatigability, etc. Any determination concerning this functional loss should be expressed in degrees of additional range of motion loss. A detailed rationale is requested for all opinions provided. The examiner is advised that the Veteran is competent to provide evidence of symptomatology readily apparent to her, to include issues with knee “giving out,” regardless of whether the symptoms are noted in the service medical records or on the date of examination. 2. After the completion of the foregoing, the AOJ must review the VA examination report to ensure it is adequate and complies with the Board instruction above. Specifically, the AOJ must ensure that the examiner provides an estimate in degrees of any additional functional loss after repetitive testing or the Veteran’s description of flare-ups. The examination report must be returned to the medical center for full compliance if it is deficient. Only after this action is completed should the AOJ readjudicate the claims for increased rating for all manifestations of the left knee disability 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including entitlement to TDIU prior to July 24, 2019. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Perkins, 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.