Citation Nr: 21010926 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 20-06 136 DATE: February 26, 2021 THE ISSUES 1. Entitlement to a disability in excess of 20 percent for a right knee anterior cruciate ligament tear (hereinafter right knee disability) based on instability of the joint. 2. Entitlement to a disability rating in excess of 10 percent for a right knee disability based on painful motion of the joint. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REMANDED Entitlement to a disability in excess of 20 percent for a right knee anterior cruciate ligament tear (hereinafter right knee disability) based on instability of the joint is remanded. Entitlement to a disability rating in excess of 10 percent for a right knee disability based on painful motion of the joint is remanded. Entitlement to a TDIU is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1962 to October 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2019 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Initially, the Board notes that the January 2019 rating decision also denied entitlement to a TDIU. The Veteran submitted a notice of disagreement (NOD) in December 2019 indicating that the January 2019 rating decision “lacked consideration for loss of income due to knee disability limitation” and continued to assert that his right knee disability affected his employment. While the January 2020 Statement of the Case did not address the issue of entitlement to a TDIU, the Board notes that the Veteran has continued to assert his service-connected right knee disability affects his employment. Therefore, the Board finds that pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), the issue of entitlement to a TDIU has been raised by the record as part of the Veteran’s increased rating claim. These matters were last before the Board in September 2020 at which time they were remanded in order to afford the Veteran a new VA examination. For the reasons detailed below the Board finds that the new VA examination does not comply with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order); Dyment v. West, 13 Vet. App. 141, 147 (1999) (clarifying that substantial compliance with Board remand is required). Where the Board fails to ensure substantial compliance, remand is appropriate. Stegall, 11 Vet. App. at 271. Accordingly, the Board finds it necessary to remand these issues for the RO to complete its development. In a November 2020 rating decision, the RO assigned a separate disability rating of 10 percent for limitation of motion of the right knee based on painful motion from June 14, 2018. However, the claim remains on appeal as this does not represent a full grant of the benefit sought. AB v. Brown, 6 Vet. App. 35 (1993). 1. Entitlement to a disability in excess of 20 percent for a right knee anterior cruciate ligament tear (hereinafter right knee disability) based on instability of the joint is remanded. 2. Entitlement to a disability rating in excess of 10 percent for a right knee disability based on painful motion of the joint is remanded. Prior to January 2019 rating decision on appeal, the Veteran was provided a VA examination to address the nature and severity of his right knee disability. However, in its July 2020 decision, the Board found the August 2018 examination report does not comply with the requirements set forth in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). Specifically, while the examination report indicated that the Veteran had pain with range of motion testing, the examiner did not indicate where the Veteran’s pain started or ended. Additionally, while the examiner stated that opinions regarding functional loss with repeated use and flare-ups could not be provided without resort to speculation, the examiner did not indicate that the speculation was due to lack of knowledge within the medical community. Finally, the Board noted that the examiner stated that the Veteran’s limitation of range of motion could be total or minimal, which seemingly contradicts the examiner’s determination that it would not be possible to describe functional loss in terms of range of motion. Accordingly, the Board remanded the matter for a Correia and Sharp compliant examination. Specifically, the Board directed the examiner to address the August 2018 VA examiner’s statement that the Veteran occasionally suffered a complete loss of ROM in the right knee during flare ups. The Veteran was afforded a VA examination in September 2020. However, the examiner did not address the Veteran’s full history of right knee symptoms, and specifically did not discuss any flare-ups or the August 2018 VA examination findings as required by the September 2020 Board remand directives. Stegall, 11 Vet. App. at 271. Therefore, the Board finds a new VA examination is warranted. 3. Entitlement to a TDIU is remanded. Additionally, the Board notes that, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), the issue of entitlement to a TDIU has been raised by the record as part of the Veteran’s increased rating claim; and thus, the Board remands this matter as inextricably intertwined with the increased rating claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). The matters are REMANDED for the following action: 1. Obtain all outstanding VA and/or private treatment records. Should such records exist, associate them with the electronic claims file. 2. Schedule the Veteran for an examination of the current severity of his right knee disability. The claims folder and this remand must be made available to the examiner for review, and the examination report must reflect that such a review was undertaken. Conduct all indicated diagnostic tests that are deemed necessary for an accurate assessment of this condition, including an analysis of any additional disability owing to pain, weakness, premature or excess fatigability, or incoordination, such as during prolonged, repeated use or during “flare ups.” The examiner should report (in degrees) the point at which pain is experienced. These determinations, if feasible, should be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups or prolonged use. This information must be derived from testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing. The examination report must confirm that all such testing has been done and reflect the results of the testing. If the examiner is unable to perform the required testing or concludes the testing is unnecessary, he or she must clearly explain why that is so. The nature and all symptoms from the Veteran’s right knee disability, including the frequency and severity of any flare ups, must be noted. The examiner is to note a full and complete history of the Veteran’s symptoms, to include symptoms associated with any flare-ups. 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. Provide an opinion as to additional functional loss during flare-ups of the musculoskeletal disability, pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). Should the examiner state that he or she is unable to offer such an opinion without resorting to speculation based on the fact that the examination was not performed during a flare up, the examiner is directed to ascertaining information as to the frequency, duration, characteristics, severity, or functional loss. Sharp v. Shulkin, No. 16-1385 (Vet. App. September 6, 2017). If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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 examiner is asked to address the August 2018 examiner’s statement that the Veteran occasionally suffers complete loss of ROM in the right knee during flare ups. 3. Finally, after completing any other development that may be indicated, readjudicate the claims, to include the inextricably intertwined TDIU. If the benefits sought are not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Geary, 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.