Citation Nr: 21012340 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 13-35 462 DATE: March 4, 2021 REMANDED Entitlement to an initial rating in excess of 50 percent for service-connected status post left knee arthroplasty is remanded. Entitlement to an initial rating in excess of 10 percent for service-connected degenerative joint disease, right knee is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1979 to August 1979 and from July 1980 to October 1986. The Board previously remanded this case in December 2017 and March 2019 for further development. The case has now been returned for appellate review. In March 2019, the Board also remanded the issues of entitlement to service connection for posttraumatic stress disorder (PTSD) and sleep apnea for issuance of a statement of the case. A statement of the case was issued in May 2020; however, the Veteran did not submit a substantive appeal. As such, these issues are no longer in appellate status. The Board also previously found that the issue of entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disabilities had not been raised by the record in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). Nevertheless, the Veteran subsequently submitted a clam for TDIU, which was denied in a February 2020 rating decision as the Veteran had not submitted a completed VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. Such adjudication constitutes a permissible bifurcation of the TDIU claim from the increased rating claims here on appeal. See Roebuck v. Nicholson, 20 Vet. App. 307, 315 (2006); Holland v. Brown, 6 Vet. App. 443, 447 (1994); see also Locklear v. Shinseki, 24 Vet. App. 311 (2011). Moreover, although the December 2020 VA examiner indicated that the Veteran’s knee disabilities impacted her ability to work, the examination report indicates that the Veteran is still employed and only missed one to two weeks of time lost in the last 12 months. As such, the claim for a TDIU has not been reasonably raised by the record. Entitlement to higher ratings for service-connected bilateral knee disabilities are remanded. In accordance with the Board’s March 2019 remand, the Veteran was afforded a VA examination that addressed the current nature and severity of her service-connected bilateral knee disabilities in December 2020; however, as will be explained, the examination results are insufficient to adjudicate the Veteran’s claims at this time. In pertinent part, the examiner indicated that the Veteran never suffered from a meniscus (semilunar cartilage) condition. Furthermore, although the examiner indicated that the Veteran underwent a total knee joint replacement, there was no indication that she underwent a meniscectomy. Other evidence of record, however, indicates that the Veteran did, in fact, suffer a right knee meniscal tear. The November 2011 VA examiner noted that her history included a right knee meniscal tear, that she experienced frequent episodes of joint locking, and that she underwent a meniscectomy. Moreover, VA treatment records dating back to February 2003 note that her active problems included a tear of the medial cartilage or meniscus of the knee. Given this conflicting evidence, the Veteran should be afforded a new VA examination that addresses the current nature and severity of her service-connected bilateral knee disabilities. In doing so, the examiner must specifically address whether the Veteran has experienced a tear of the meniscus (semilunar cartilage), whether she has undergone a meniscectomy of either knee, and whether she experiences residuals symptoms associated with either. The matters are REMANDED for the following action: 1. Associate with the Veteran’s claims file any VA treatment records dated from May 4, 2020, to the present. 2. Give the Veteran an additional opportunity to identify any outstanding pertinent evidence that has not already been associated with the claims file. The AOJ should then attempt to obtain those records if she provides the appropriate authorization. 3. Schedule the Veteran for an appropriate VA examination by a competent medical professional to determine the current nature and severity of her service-connected bilateral knee disabilities. The entire record must be made available to, and be reviewed by the examiner. The examiner should take a history from the Veteran as to the progression of her service-connected bilateral knee disabilities. Any indicated evaluations, studies, and tests should be conducted. The examiner must address each of the following: a) The examiner should describe all symptoms associated with the Veteran’s service-connected bilateral knee disabilities. b) The examiner should also indicate whether the Veteran has experienced a tear of the meniscus (semilunar cartilage) in either knee, whether she has undergone a meniscectomy, and whether she experiences residuals symptoms in either knee associated with either. In doing so the examiner should note that the November 2011 VA examiner indicated that the Veteran’s history included a right knee meniscal tear, that she experienced frequent episodes of joint locking, and that she underwent bilateral meniscectomies. Furthermore, VA treatment records dating back to February 2003 note that her active problems included a tear of the medial cartilage or meniscus. c) The examiner should test for pain in active motion, passive motion, weight-bearing, and nonweight-bearing. If such testing cannot be conducted, the examiner should explain why this is so. d) The examiner should ask the Veteran to report any range of motion loss during flare-ups or following repeated use. The Veteran should be asked to identify the frequency, severity and duration of flare-ups, if any. Even if the Veteran is not experiencing a flare-up at the time of the examination, the examiner must elicit relevant information as to her flare-ups and ask her to describe the additional functional loss, if any, she suffers during flare-ups or following repeated use, to include any loss of range of motion. e) If the examination does not occur during a flare-up or following repetitive use, based upon the evidence of record, and the information elicited on examination, the examiner should estimate range of motion loss during a flare-up and/or after repetitive use, if any. If an estimate cannot be provided based on the information provided by the Veteran and the contemporaneous medical evidence available, the examiner should state so clearly and provide a detailed explanation as to whether such estimates would be unknowable to the medical community to any degree of medical certainty, in spite of such evidence. All examination findings/testing results, along with a complete, clearly-stated rationale for any opinion offered, must be provided. J.N. MOATS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Springer, 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.