Citation Nr: 21009112 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 14-34 575 DATE: February 19, 2021 ORDER A rating in excess of 10 percent prior to November 7, 2018, for the service-connected osteoarthritis of the right knee with limitation of motion is denied. A rating in excess of 10 percent prior to August 9, 2014, and in excess of 20 percent from August 9, 2014, through November 6, 2018, for the service connected right knee anterior cruciate ligament (ACL) laxity is denied. A rating in excess of 100 percent from November 7, 2018, through December 31, 2019, for the service-connected right total knee arthroplasty is denied. REMANDED A rating in excess of 30 percent from January 1, 2020, for the service-connected right total knee arthroplasty is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU), to include on an extraschedular basis, is remanded. FINDINGS OF FACT 1. Prior to November 7, 2018, the Veteran’s right knee disability did not result in extension functionally limited to 15 degrees or more or flexion functionally limited to 60 degrees or less. 2. At no time prior to November 7, 2018, did the Veteran’s service-connected right knee disability result in ankylosis; dislocated meniscus causing locking; symptomatic removal of semilunar cartilage; an impairment of the tibia and fibula; or genu recurvatum. 3. At no time prior to November 7, 2018, did the Veteran’s service-connected right knee disability result in severe recurrent subluxation or lateral instability; nor was moderate recurrent subluxation or lateral instability in the right knee shown prior to August 9, 2014. 4. For the period from November 7, 2018 through December 31, 2019, the Veteran was in receipt of the maximum schedular rating of 100 percent for service-connected right total knee arthroplasty. CONCLUSIONS OF LAW 1. Prior to November 7, 2018, the criteria for a rating in excess of 10 percent for the service-connected right knee osteoarthritis with limitation of motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5010, 5256, 5258-5263. 2. The criteria for a rating in excess of 10 percent prior to August 9, 2014, and in excess of 20 percent from August 9, 2014 through November 6, 2018, for the service-connected right ACL laxity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5257. 3. There is no legal basis for the assignment of a disability rating in excess of 100 percent for the service-connected right total knee arthroplasty from November 7, 2018, through December 31, 2019. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.71a, DC 5055. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1986 to December 1991. In November 2020, the Veteran appeared and provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ). This case was previously before the Board of Veterans’ Appeals (Board) in November 2018. At that time, the Board remanded the Veteran’s claims for further development regarding whether the Veteran had undergone a right knee replacement surgery. On remand, evidence was obtained which showed that the Veteran had undergone such surgery on November 7, 2018. Accordingly, the Regional Office (RO) recategorized the Veteran’s service-connected right knee disability effective November 7, 2018, and assigned a 100 percent rating from November 7, 2018, through December 31, 2019, and a 30 percent rating thereafter for right total knee arthroplasty. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate DCs identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. A veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). A rating in excess of 10 percent prior to November 7, 2018, for the service-connected osteoarthritis of the right knee with limitation of motion A rating in excess of 10 percent prior to August 9, 2014, and in excess of 20 percent from August 9, 2014 through November 6, 2018, for the service connected right knee ACL laxity The Veteran contends that higher ratings are warranted for his right knee disability prior to November 7, 2018, when he underwent a right total knee replacement. Prior to November 7, 2018, the Veteran’s right knee ACL laxity was rated as 10 percent disabling prior to August 9, 2014, and 20 percent disabling thereafter under DC 5257. In addition, prior to November 7, 2018, the Veteran’s right knee arthritis with limitation of motion was rated 10 percent disabling under DCs 5010-5260. Hyphenated diagnostic codes are used when a rating under one DC requires use of an additional DC to identify the basis for the rating assigned. 38 C.F.R. § 4.27. DC 5010 refers to “arthritis due to trauma,” and states that traumatic arthritis is to be rated under DC 5003 for degenerative arthritis. 38 C.F.R. § 4.71a, DC 5010. DC 5003 provides that arthritis is generally rated based on limitation of motion of the joint. However, if limitation of motion of the knee is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be assigned. See 38 C.F.R. § 4.71a, DC 5003. In this case, the Board notes that the January 2001 rating decision which initially assigned the 10 percent rating for right knee arthritis with limitation of motion clarified that the Veteran did not have compensable limitation or extension in his right knee. The 10 percent evaluation was assigned based on the diagnosis of arthritis in the Veteran’s right knee with some limitation of motion and for painful motion. As such, the RO applied the provision of DC 5003 (via DC 5010) and assigned a rating of 10 percent for limitation of motion which was otherwise not compensable in the Veteran’s arthritis right knee. Under DC 5260, a noncompensable rating is warranted for flexion of a knee limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Limited motion of a knee disability can also be rated under DC 5261. DC 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees warrants a noncompensable rating. Extension of the leg limited to 10 degrees warrants a 10 percent rating. Extension of the leg limited to 15 degrees warrants a 20 percent rating. Extension of the leg limited to 20 degrees warrants a 30 percent rating. Extension of the leg limited to 30 degrees warrants a 40 percent rating. Extension of the leg limited to 45 degrees warrants a 50 rating. 38 C.F.R. § 4.71a, DC 5261. The standardized description of joint measurements is provided in Plate II under 38 C.F.R. § 4.71. Normal extension and flexion of the knee is from 0 to 140 degrees. Separate ratings under DC 5260 for limitation of flexion of the leg and DC 5261 for limitation of extension of the leg may be assigned for disability of the same joint, but separate compensable pathology must be shown. VAOGCPREC 9-2004. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Regarding joint instability, under 38 C.F.R. § 4.71a, DC 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. Id. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. Id. Other DCs relating to the knees are DC 5256 for ankylosis; DC 5262 for impairment of tibia and fibula; DC 5263 for genu recurvatum; DC 5258 for dislocated meniscus with frequent locking, pain, and effusion; and DC 5259 for symptomatic removal of semilunar cartilage (meniscus). Those conditions are not shown on examination or in the medical evidence of record during the appeal period, and the Board finds that application of these DCs is not warranted. 38 C.F.R. § 4.71a. In the current appeal, the Veteran underwent a VA knee and lower leg conditions examination in December 2011. At that time, the Veteran reported continued right knee pain and instability. The Veteran reported experiencing flare-ups which impacted the function of his right knee such that he would have difficulty going up and down stairs and with long periods of physical activity. Right knee range of motions testing results were as follows: flexion to 115, degrees, where painful motion began; and normal extension without any evidence of pain on motion. After repetitive-use, right knee flexion was to 115 degrees and extension remained normal. The examiner stated that the Veteran did not have additional limitation in range of motion or functional loss/impairment after repetitive use, but also stated that pain on movement contributed to functional loss/impairment or additional limitation of range of motion of the right knee after repetitive use. There was pain or tenderness to palpation to the right knee joint line or soft tissue. Muscle strength tests were normal. As to joint instability, the posterior instability and medial-lateral instability tests were normal for the right knee, but the anterior instability test was slightly abnormal, at a grade 1+ (zero to five millimeters). For the right leg, the Veteran did not experience shin splints; stress fracture of the lower extremity; chronic exertional compartment syndrome; acquired, traumatic genu recurvatum with weakness and insecurity in weight-bearing; or leg length discrepancy. He did not have any meniscal conditions or history of such, including meniscectomy. He had not had a right total knee joint replacement, but was noted to have had right ACL reconstruction surgery in 1990. He had a well-healed surgical incision scar which was not painful and/or unstable, or greater than six square inches in area. The Veteran used a constant brace to assist with locomotion, specifically a right knee sleeve. There was no X ray evidence of patellar subluxation in the right knee. The examiner noted that the Veteran’s right knee condition impacted his ability to work in that he would experience pain and feelings of instability with standing or using stairs for long periods of time. The Veteran underwent another VA knees examination in August 2014. The examiner noted that the Veteran had right knee degenerative joint disease and a repeat tear of his ACL with continued pain, and the Veteran did not report experiencing flare-ups. Right knee range of motions testing results were as follows: flexion to 110, degrees, with objective evidence of painful motion beginning at 100 degrees; and extension to five degrees. After repetitive-use, right knee flexion remained to 110 degrees and extension to 5 degrees. The examiner stated that the Veteran did not have any functional loss and/or functional impairment of the right knee and lower leg, and there was tenderness or pain to palpation for the right knee joint line or soft tissues. Muscle strength tests were normal. As to joint instability, the posterior instability and medial-lateral instability tests were normal for the right knee, but the anterior instability test was moderately abnormal, at a grade 2+ (five to ten millimeters). There was no evidence or history of recurrent patellar subluxation/dislocation in the right knee. For the right leg, the Veteran did not experience shin splints; stress fracture of the lower extremity; chronic exertional compartment syndrome; or any other tibial and/or fibular impairment. He had no meniscal conditions or surgeries for such, nor had he had a total right knee joint replacement. The examiner noted the Veteran underwent surgery for ACL reconstruction in 1990. His right knee surgical scar was not painful and/or unstable, or greater than 6 square inches in area. The Veteran used a knee brace regularly to assist with locomotion. There was no x-ray evidence of patellar subluxation. The examiner noted that the Veteran’s right knee disability impacted his ability to work in that he experienced pain with prolonged standing or weightbearing and difficulty with kneeling or climbing stairs. He also noted that the Veteran had no pain, weakness, fatigability, or incoordination that significantly limited function during flare-ups or when the right knee was used repetitively over time. The Veteran submitted a written statement with his formal appeal to the Board in September 2014. Therein, he wrote that his right knee was very unstable and very painful. His ACL was currently torn and needed surgery to be fully repaired. His arthritis was very uncomfortable throughout his body, and his left ankle was still very sore and stiff. The Board notes that the Veteran is not service-connected for his left ankle, and the issue of service connection for his ankle is not currently before the Board. If the Veteran wishes to seek service connection for his left ankle, he may file a claim with the RO. The Veteran’s private and VA medical treatment records were also reviewed for this period on appeal. For the most part, the records did not reveal that his right knee symptomatology was more severe than shown on concurrent VA examinations. However, of note, an April 2014 VA treatment note revealed that the Veteran’s right knee extension was limited to 10 degrees, suggestive of the fact that the Veteran’s right knee symptoms may have fluctuated in severity during the appeal period, as this extension measurement was more limited than those taken at VA examinations. In November 2020, the Veteran testified before the Board regarding his right knee symptoms prior to November 2018. He testified that prior to his knee replacement surgery, his right knee was always swollen. He had problems with walking and using stairs, and would wear a knee brace to help with stability. Accordingly, the Board finds that the Veteran never demonstrated limitation of flexion which arose to a compensable rating under DC 5260 (limited to 60 degrees or less), but the April 2014 VA treatment record shows that the Veteran’s right knee extension was capable of being limited to a compensable degree under DC 5261. See 38 C.F.R. § 4.71a, DCs 5260, 5261. Thus, a rating of 10 percent, but no higher, is warranted for the Veteran’s right knee based on limitation of motion (extension) pursuant to DC 5261. As to the Veteran’s right knee limitation of flexion, a compensable rating under DC 5260 requires flexion limited to 45 degrees. Here, his right knee has never even been so limited to warrant a noncompensable rating under DC 5260, which would require flexion limited to 60 degrees, much less a compensable rating. See 38 C.F.R. § 4.71a, DC 5260. In light of the findings of noncompensable range of flexion of the right knee throughout the period on appeal, a separate compensable rating based on limitation of flexion for the right knee is not warranted. See VAOPGCPREC 9-04, 69 Fed. Reg. 59990 (2005) (in which VA’s General Counsel determined that separate disability ratings could be assigned under DCs 5260 and 5261 for disability of the same joint). Although the most recent Rating Decision Codesheet reflects that the Veteran’s current 10 percent rating for his right knee limitation of motion is listed as being assigned under DC 5010-5260, as previously discussed, he was actually assigned 10 percent pursuant to DC 5003 (via DC 5010), as he was noted to be experiencing pain in his right knee on motion, but not of a compensable level. However, the Board’s assignment of a 10 percent rating under DC 5261 renders the current 10 percent rating under 5010-5260 inapplicable, as the Veteran will be compensated under DC 5261 for limitation of motion (i.e., extension). As noted above, DC 5003 (via DC 5010) provides a 10 percent rating for an arthritic joint if motion is limited but not compensable. Thus, a compensable rating for limitation of motion of the Veteran’s right knee extension prevents a compensable rating from being assigned under DC 5010. As such, although the Board is assigning a 10 percent rating under DC 5261 for the Veteran’s right knee limitation of extension prior to November 7, 2018, there is no change in the overall rating assigned for the right knee for limitation of motion. Therefore, a rating in excess of 10 percent for the service-connected osteoarthritis of the right knee with limitation of motion is not warranted. The rating for limitation of right knee motion remains at 10 percent, albeit under a different DC. However, the Board’s analysis is not yet complete. With respect to possibility of entitlement to an increased evaluation under 38 C.F.R. §§ 4.40 and 4.45, the Board must consider whether an increased rating could be assigned on the basis of functional loss due to the Veteran’s subjective complaints of pain. See DeLuca v. Brown, 8 Vet. App. 202, 204-205 (1995). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. The Court specifically discounted the notion that the highest disability ratings are warranted under DCs 5260 and 5261 where pain is merely evident as it would lead to potentially “absurd results.” Id. at 43. Here, the Veteran has shown and attested to pain and functional limitation in his right knee. However, repetitive motion testing was not shown to cause such additional limitation of motion as to suggest that the flexion or extension in his knee was functionally limited to a level warranting a more compensable schedular rating. Moreover, pain was not shown to occur prior to the stopping points at a more compensable range of motion with regard to either flexion or extension. The demonstrated functional limitations of motion do not approximate ranges which are required for a compensable rating for limitation of flexion or for a rating in excess of 10 percent for limitation of extension for the right knee at any time during the appeal period. As stated above, the Veteran does not even meet the criteria for a noncompensable rating under 5260, and his functional limitations do not further limit his flexion to compensable degrees. Further, his right knee extension has never been shown to be limited to more than 10 degrees, nor has pain or any other factor of disability been shown to limit his extension that far. Thus, a rating in excess of 10 percent for his right knee limitation of motion is prohibited under the schedular criteria. Regarding the Veteran’s right knee instability, the evidence does not support ratings higher than those already assigned during the period on appeal. Higher ratings would be available for the Veteran’s right knee laxity under DC 5257 if, prior to August 9, 2014, moderate lateral instability was shown, and/or if, from August 9, 2014, through November 6, 2018, severe lateral instability was shown in the Veteran’s right knee. See 38 C.F.R. § 4.71a, DC 5257. The evidence of record does not support such findings. The criteria under DC 5257 require “moderate” subluxation or instability for a 20 percent rating to be assigned; and “severe” subluxation or instability for a 30 percent rating to be assigned. Words such as mild, moderate, and severe are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence for equitable and just decisions. 38 C.F.R. § 4.6. Prior to August 9, 2014, on VA examination, two of the three stability tests for the Veteran’s right knee were normal, and only the anterior instability test was abnormal. However, it was only slightly abnormal, as the 2011 VA examiner noted it was of a grade “1+,” which indicates the leg moved no more than five millimeters more than normal as compared to the left leg. On VA examination on August 9, 2014, the Veteran’s right leg first showed evidence of worsening instability. At that time, two of the three stability tests for the Veteran’s right knee remained normal, but the anterior instability test revealed an increase in instability to a moderate grade “2+,” which indicates the leg moved five to ten millimeters more than normal as compared to the left leg. At no time did any VA examination instability test of the Veteran’s right knee reveal severe, grade “3+” instability, nor did the Veteran’s treatment records indicate such. The Board acknowledges that the Veteran wore a right knee brace or sleeve throughout the period on appeal, and that he was consistently noted as having difficulty using stairs. Both of those factors support a finding that the Veteran experienced instability in his right knee. However, such instability is contemplated by the ratings he has been assigned under DC 5257 prior to November 7, 2018. The Board also acknowledges the Veteran’s opinion which he wrote in his formal appeal to the Board in September 2014 that his right knee was “very” unstable, The Board is required to assess the credibility and probative weight of all relevant evidence. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007). The Veteran is competent to report his right knee symptoms, as these observations come to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The Board also acknowledges the Veteran’s belief that his symptoms are of such severity as to warrant an increased evaluation. However, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. Therefore, the Board finds that the medical findings, which directly address the criteria under which the disability is evaluated, are more probative than the Veteran’s assessments of the severity of his disability. In light of the above, prior to August 9, 2014, the Board finds that the Veteran’s ACL laxity was not shown to be of moderate severity. During that time, instability testing of the Veteran’s right knee revealed no more than slight instability. As of August 9, 2014, however, evidence showed that his right knee instability had worsened, to a moderate degree. At no time was severe instability shown in the Veteran’s right knee. As such, a rating in excess of 10 percent prior to August 9, 2014, and in excess of 20 percent from August 9, 2014 through November 6, 2018, for the service-connected right knee ACL laxity (instability) is not warranted. In sum, the Board finds that a 10 percent disability rating for the Veteran’s service-connected right knee disability is warranted based on limitation of extension. This disability rating compensates pain in the joint. The 10 percent evaluation that the Veteran had been assigned under 38 C.F.R. § 4.71a, DC 5010 (although the RO assigned it under DC 5260, as well) was based on allowing the Veteran to have at least a 10 percent rating for his right arthritic knee due to painful motion. The grant of 10 percent under DC 5261 is not a separate compensable rating, as compensable ratings under both DC 5261 and DC 5010 for painful motion in the joint are disallowed. See 38 C.F.R. § 4.71a, DC 5003 (applied via DC 5010, stating that a 10 percent rating is allowed for an arthritic joint when limitation of motion of the joint is otherwise noncompensable). A rating in excess of 10 percent for the right knee disability for limitation of motion is denied—as is a rating in excess of 10 percent prior to August 9, 2014, and in excess of 20 percent from August 9, 2014 through November 6, 2018, for his right knee disability for instability. The Board has also considered the other diagnostic codes pertaining to the knee and leg. However, the Veteran’s right knee condition has not resulted in symptoms such as ankylosis, meniscal conditions, genu recurvatum, or impairment of the tibia and fibula. In conclusion, the Board finds that the preponderance of the evidence is against the claim for a rating in excess of 10 percent for right knee limitation of motion prior to November 7, 2018—and against the claim for a rating in excess of 10 percent prior to August 9, 2014 and in excess of 20 percent from August 9, 2014, through November 6, 2018, for right knee instability. In denying such ratings, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A rating in excess of 100 percent from November 7, 2018, through December 31, 2019, for the service-connected right total knee arthroplasty For the period from November 7, 2018, through December 31, 2019, the Veteran’s right total knee arthroplasty is rated at 100 percent under the criteria found at 38 C.F.R. § 4.71a, DC 5055, for knee replacement. Under these regulatory criteria, a 100 percent rating is the maximum allowable schedular rating. 38 C.F.R. § 4.71a, DC 5055. In this case, the Veteran was already receiving the maximum 100 percent schedular rating permitted under 38 C.F.R. § 4.71a, DC 5505, for his right knee replacement from November 7, 2018, through December 31, 2019. There is no other more applicable DC for which a disability rating in excess of 100 percent for this disability may be warranted during this period. Because the Veteran is receiving the maximum schedular disability rating available under 38 C.F.R. § 4.71a, DC 5505, there is no basis to grant a higher schedular rating for right total knee arthroplasty from November 7, 2018, through December 31, 2019. Thus, a disability rating in excess of 100 percent for the service-connected right total knee arthroplasty is not warranted for this period. REASONS FOR REMAND Entitlement to a rating in excess of 30 percent from January 1, 2020, for the service-connected right total knee arthroplasty Pursuant to the prior Board remand, the RO determined that the Veteran underwent a right total knee arthroplasty on November 7, 2018. A 100 percent disability rating was assigned for the replacement of the Veteran’s right knee, pursuant to DC 5055, for one year following the implantation of the prosthesis. After that time, the RO assigned a 30 percent rating from January 1, 2020, without affording the Veteran a VA examination to determine the severity of his service-connected right knee symptomatology post-knee replacement surgery. Such an examination is needed to determine the level of disability in the Veteran’s right knee before the Board can decide this claim. Entitlement to a TDIU, to include on an extraschedular basis At the Veteran’s November 2020 Board hearing, he asserted that his service-connected right knee disability prevents him from being able to maintain substantially gainful employment and that he has not been able to work since 2012. A claim for a TDIU rating is part of an increased rating claim when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Thus, in light of the Veteran’s contentions, the Board finds that the issue of entitlement to a TDIU is raised by the record, is part and parcel of the higher rating claim on appeal, and is thus properly before the Board. Because a decision on the remanded issue of entitlement to a rating in excess of 30 percent from January 1, 2020, for the service-connected right total knee arthroplasty could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. As such, a remand of the claim for entitlement to a TDIU is required. Also in this regard, the Board notes that the Veteran has not yet completed a VA Form 21-8940 (Application for TDIU) for the period on appeal, and details regarding his employment during the appeal period are unclear, as he provided testimony at the Board hearing that he was employed for a portion of the appeal period. On remand, he should be asked to complete the appropriate application for a TDIU and provide related employment details. Then, all necessary development must be undertaken regarding the TDIU issue. Accordingly, these matters are REMANDED for the following action: 1. Provide the Veteran with a VA Form 21-8940, Application for TDIU, and request that he submit the completed form, with all appropriate information. Then, take all appropriate action on the TDIU claim. 2. Schedule the Veteran for an appropriate examination to determine the current severity of his service-connected right knee disability. The examiner should review the claims file in conjunction with the examination. All necessary tests should be completed, and all pertinent pathology associated with this service-connected disability—to include, but not limited to, any limitation of motion of this joint (including passive and active ranges of motion in weight-bearing and nonweight-bearing)—should be annotated in the examination report. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups and the degree of functional loss during flare ups; as well as the degree of functional loss after repetitive use over time. To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected disability alone and discuss the effect of the disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement or an opinion regarding additional functional loss due to repetitive use over time or flare-ups 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). No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. He is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Davidoski, 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.