Citation Nr: 21010965 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 12-11 834 DATE: February 26, 2021 REMANDED Entitlement to a rating in excess of 10 percent for a service-connected right knee disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1985 to September 1989. She also had a period of active duty for training (ACDUTRA) from April 1982 to August 1982. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a June 2011 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA). In August 2020, the Veteran testified before the undersigned Veterans Law Judge. See December 2020 Hearing Transcript. 1. Entitlement to a rating in excess of 10 percent for a service-connected right knee disability is remanded. The Board notes that at the August 2020 Board hearing, the Veteran testified that her right knee disability was characterized by swelling that occurred in March 2020, she underwent X-ray imaging. The Veteran testified that she had undergone physical therapy and she submitted records following the hearing that show complaints of knee pain. See December 2020 Medical Record. The Board notes the most recent examination was prior to her complaints of increased knee pain and the December 2019 VA examination did not indicate the presence of swelling. See December 2019 Examination. Accordingly, the Board finds that the Veteran’s testimony constitutes assertions of a worsening of her right knee disability since the most recent examination. Further examination is needed to ascertain whether the Veteran’s recent complaints of swelling and pain warrant an increased evaluation. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The issue of entitlement to TDIU is inextricably intertwined with the Veteran’s appeal of the rating assigned for her service-connected right knee disability, she does not meet the schedular requirements for TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The Board directed VA in a November 2019 remand to consider extra-schedular consideration as provided under 38 C.F.R. § 4.16(b) for any period in which the Veteran does not meet the percentage requirements outlined in 38 C.F.R. § 4.16(a). The Veteran’s representative has argued the Veteran is unemployable due to service-connected tinnitus and right knee disabilities and extra-schedular referral is warranted. The Veteran was found to be disabled under Social Security Administration (SSA) regulations due to diabetes mellitus with neuropathy, left wrist status post ganglion cyst removal, service-connected patellofemoral syndrome, obesity, service-connected tinnitus, and major depressive disorder. See August 2011 SSA Decision; see also October 2019 Appellate Brief. When VA readjudicated this issue in July 2020, the RO denied entitlement to TDIU but did not refer this issue to the Director of Compensation service. The Veteran’s representative contends this is error for failure to refer this case for extra-schedular consideration by the Director of Compensation Service See August 2020 Appellate Brief. Although the Board cannot assign TDIU on an extra-schedular basis in the first instance, it must specifically adjudicate whether referral for extra-schedular consideration is warranted. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Given the Board’s prior remand directives, the Veteran’s contention that TDIU is warranted on an extra-schedular basis, and the evidence from SSA, referral for consideration for extra-schedular consideration is warranted. The matters are REMANDED for the following action: 1. Schedule the Veteran for a new examination to assess the current severity of her service-connected right knee disability. The selected examiner should conduct all indicated tests and studies, to include range of motion testing. The knees should be tested in both active and passive motion and in weight-bearing and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups she experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment she experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements regarding swelling on use and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. Refer the Veteran’s case to the Director, Compensation Service, for consideration of whether TDIU is warranted on an extra-schedular basis. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Trickey 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.