Citation Nr: 21009655 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 15-41 029 DATE: February 23, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent for left knee meniscus tear and mild osteoarthritis is remanded. Entitlement to an initial rating in excess of 20 percent for right knee meniscus tear and mild osteoarthritis is remanded. Entitlement to a total disability rating based on individual unemployability is remanded. REASONS FOR REMAND The Veteran served on active duty from November 2000 to December 2003, from March 2005 to July 2006 and from June 2008 to August 2009. These matters come before the Board of Veterans’ Appeals (Board) on appeal from September 2012 and March 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The record shows that on the November 2015 VA Form 9, the Veteran requested a Board hearing before a Veterans Law Judge, and a hearing was scheduled for February 11, 2019. This hearing was rescheduled to May 10, 2019. The Veteran was informed in a March 2019 letter that if he did not report to the scheduled hearing, his hearing request was presumed to be withdrawn. The Veteran did not appear at the hearing. Accordingly, the Board presumes the Veteran has withdrawn his request for a Board hearing. Under Rice v. Shinseki, the Board has jurisdiction over a TDIU claim as part and parcel of the Veteran’s increased rating claim if raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather, is part of a claim for increased compensation). This issue has been separately characterized in the issues above in accordance with that decision. 1. Entitlement to an initial rating in excess of 20 percent for left knee meniscus tear and mild osteoarthritis 2. Entitlement to an initial rating in excess of 20 percent for right knee meniscus tear and mild osteoarthritis The Veteran contends that his bilateral knee disabilities warrant higher initial evaluations than the 20 percent rating assigned. While the Board regrets further delay, additional development is needed in order to properly adjudicate the Veteran’s increased rating claims. The Veteran was afforded a VA knee examination in May 2012, which showed normal range of motion bilaterally and no objective evidence of painful motion. The Veteran reported flare-ups which he described as, “I get a heating pad and an ice pack.” The examiner reported the functional impact of the Veteran’s bilateral knee disabilities as limiting his ability to run, jump or squat. The examination report also shows that the Veteran had bilateral meniscal tears, frequent episodes of bilateral joint pain and frequent episodes of bilateral joint effusion. The RO granted service connection for left and right knee mild osteoarthritis in the September 2012 rating decision, and assigned an initial rating of 10 percent for each disability based on painful motion under 38 C.F.R. § 4.59, which allows consideration of functional loss due to painful motion to be rated to at least the minimum compensable rating for a particular joint. The record shows that VA treatment records through March 2015 were added to the record after the September 2012 rating decision and after the Veteran’s May 2013 notice of disagreement. The RO considered these records in the March 2015 rating decision, and increased the initial ratings for bilateral knee meniscus tear and mild osteoarthritis to 20 percent based on dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. The RO noted that the provisions of 38 C.F.R. §§ 4.40 and 4.45 were considered. The RO then noted that additional information would be requested from the VA examiner to determine whether a higher evaluation is warranted. A VA joints examination that fails to take into account the factors listed in 38 C.F.R. §§ 4.40 and 4.45, including those experienced during flare-ups or on repeated use over time, is inadequate for evaluation purposes. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). For an examination not conducted during a flare-up or after repeated use over time to comply with DeLuca, the examiner must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veteran, and offer an opinion based on an estimate derived from information procured from relevant sources, including the lay statements of the veteran. Sharp v. Shulkin, 29 Vet. App. 26, 34-35 (2017). The examiner’s determination in that regard should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss. DeLuca, 8 Vet. App. at 206. When an examiner states that he or she cannot offer an opinion without resort to speculation, that opinion is adequate only when it is clear that it is predicated on a lack of knowledge among the medical community at large and not the insufficient knowledge of the specific examiner. Sharp, 29 Vet. App. at 36 (quoting Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)). The Veteran’s reported description of his flare-ups during the May 2012 VA does not describe the severity, frequency and duration sufficiently for rating purposes, and the examination report does not reflect an attempt by the examiner to elicit such information. In March 2015, approximately four weeks after the rating decision issued, the May 2012 VA examiner, three years after his in-person examination of the Veteran, provided an addendum opinion based on his review of the Veteran’s records, noting that additional loss of function due to repetitive use or due to flare-ups could not be determined without resorting to mere speculation, unless repetitive use occurs just prior to or during the examination, or when the examination occurs during a flare-up. The examiner also stated that “no… fatigue, lack of endurance, weakness, atrophy, incoordination, instability, or pertinent abnormal weight bearing, except as noted.” The Board finds that the May 2012 examination and March 2015 opinion do not comply with DeLuca and, because higher evaluations may be warranted for limitation of flexion, limitation of extension and instability, remand is required for a new examination and opinion. Additionally, while the mere passage of time is not a basis for requiring a new examination, on his May 2013 notice of disagreement, the Veteran indicated that his disabilities had worsened, to include swelling, joint pain and increased weight gain from lack of exercise. The Veteran stated that although he was only in his early 30s, he moved like a senior citizen which embarrassed and depressed him. The Veteran further reported that at times, the constant pain makes him totally disabled for a matter of days. When there is evidence there has been a material change in the Veteran’s disability, the current rating may be incorrect, or where the Veteran asserts that the disability has undergone an increase in severity since the last examination, a new examination must be provided. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007); Caffery v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). A remand is necessary for another VA examination to assess the current nature and severity of his bilateral knee disabilities. Given the length of this appeal period, a retrospective medical opinion should be provided as well. See Sharp, 29 Vet. App. at 35 (explaining that “the Court’s case law and VA guidelines anticipate that examiners will offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans”); see also Chotta v. Peake, 22 Vet. App. 80, 85 (2008) (holding that the duty to assist may include obtaining a retrospective medical opinion to fill in gaps in the medical evidence of record). Finally, the Board notes that the most recent medical treatment records of record are dated in July 2015. On remand, the RO should attempt to obtain any outstanding VA and non-VA medical treatment records. 3. Entitlement to a TDIU The Veteran contends that his service-connected disabilities impact his ability to work. Specifically, the Veteran reported that he was no longer able to work as an HVAC technician due to mobility issues and chronic back pain, that he left his HVAC job after he assaulted a customer in his home after being triggered to have a flashback / re-experiencing event due to his service-connected post-traumatic stress disorder and that he has not been able to hold down steady employment, physically or mentally. See February 2017 VA Back and PTSD Examination Reports and May 2013 Notice of Disagreement. The issue has thus been raised by the record in this case. The Veteran’s claim for entitlement to a TDIU is intertwined with the remanded increased rating claims and is remanded pending the development requested below. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). On remand, the Veteran should be sent notice informing him how to substantiate a claim for TDIU, and he should be asked to complete a VA Form 21-8940, which is designed to elicit information including dates of employment, type of work, reason for leaving employment, education and training, and the disabilities the Veteran believes prevent his employment. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and private treatment records and associate them to the record. 2. Thereafter, schedule the Veteran for an examination with an appropriate examiner to determine the current severity of his bilateral knee meniscus tears with mild osteoarthritis. The claims file, to include a copy of this Remand, must be made available to, and reviewed by, the examiner. The examiner should note such review was conducted. The examiner is to provide a detailed review of the Veteran’s pertinent medical history, current complaints, and physical evaluation of his bilateral knee disabilities. The examiner is asked to express two opinions concerning functional loss. One opinion should consider the Veteran’s current functional loss. The second opinion should be a retrospective opinion considering functional loss dating back to April 2012, i.e., for the entire appeal period. In providing these opinions, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing and must answer whether pain, weakness, fatigability, or incoordination cause additional functional impairment on repeated use over time or during flare-ups. 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. The examiner should assess additional functional impairment in terms of the degree of additional range-of-motion loss, if possible. If the Veteran is not observed during a flare-up or after repeated use over time during the examination, the examiner should still estimate any additional functional impairment based on the evidence of record and the Veteran’s lay descriptions of repeated use or flares’ severity, frequency, duration, and/or functional loss manifestations. The examiner is asked to give a retrospective opinion, considering the aforementioned characteristics and the Veteran’s responses. If it is not feasible to determine the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why that is so. The examiner is further advised that the inability to provide an opinion without resorting to speculation must be based on the limitation of knowledge in the medical community at large and not a limitation - whether based on lack of expertise, insufficient information, or unprocured testing - of the individual examiner. To the extent possible, the examiner should identify any symptoms and functional impairments and discuss the effect on any occupational functioning and activities of daily living. 3. Provide the Veteran with a VA Form 21-8940 with instructions that it should be completed in order to assist with the adjudication of the TDIU claim. If the Veteran provides a completed VA Form 21-8940, the Agency of Original Jurisdiction should complete any additional development prompted by the information on the completed form. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Battaile 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.