Citation Nr: 21012602 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-31 432A DATE: March 4, 2021 REMANDED Entitlement to an initial disability rating in excess of 10 percent for service-connected right knee iliotibial band tear, post dislocation with degenerative joint disease (right knee disability) is remanded. Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disabilities prior to October 7, 2018 is remanded. REASONS FOR REMAND The Veteran had active service from September 1972 to April 1973. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were last before the Board in November 2019, when they were remanded for additional development. While the Veteran initially requested a hearing, he withdrew that request in a January 2019 correspondence. See 38 C.F.R. § 20.704(e). While an August 2020 rating decision granted an earlier effective date of October 7, 2018 for the Veteran’s TDIU, as he was not awarded a TDIU for the entire period on appeal, the issue of entitlement to TDIU for the period prior to October 7, 2018 remains in appellate status, and the Board has jurisdiction to consider this matter. Harper v. Wilkie, 30 Vet. App. 356 (2018). The Veteran was in receipt of a temporary total rating (TTR) from May 15, 2018 until July 1, 2018. As this is the maximum rating assignable, an increased rating or TDIU for that period is not for consideration. 1. Entitlement to an initial disability rating in excess of 10 percent a right knee disability is remanded. 2. Entitlement to a TDIU due to service-connected disabilities prior to October 7, 2018 is remanded. The evidence indicates there may be outstanding relevant VA treatment records. VA treatment records from April 22, 2018, April 18, 2019, and April 3, 2019 indicate that the Veteran was to return for follow up appointments on April 26, 2019, May 16, 2019, and in October 2019 and January 2020. VA treatment records after April 22, 2019 have not been associated with the claims file. Additionally, a VA treatment record from June 20, 2018 indicates that an unidentified orthopedic surgery record had been scanned. It does not appear that the referenced record has been associated with the claims file. As the VA records are in VA’s constructive possession and could potentially aid in substantiating the claims, a remand to obtain the outstanding records is required. See Jones v. Wilkie, 918 F.3d 922, 926 (Fed. Cir. 2019) (the duty to assist in obtaining VA records is not discharged “based on a mere belief that the likelihood of finding a record substantiating a veteran's claim is 'low' or ‘extremely low’”). The Veteran’s last knee examination was in March 2019. A VA treatment record from April 3, 2019 indicates that the Veteran reported that his right knee would “pop” and “lock.” As these were symptoms not noted in the March 2019 VA examination report, the Board finds that the Veteran’s right knee disability may have worsened. Accordingly, the Veteran should be provided a VA examination to determine the current nature and severity of his right knee disability. Regarding the Veteran’s TDIU claim, further clarification is required. On his January 2019 VA Form 21-8940, the Veteran reported that he last worked in 2004. In contrast, in a March 2019 statement, he reported that he last worked in May 2008 and on his December 2010 SSA-Form 3369 he reported that he last worked in January 2008. Moreover, a December 28, 2017 VA treatment record notes that the Veteran worked part-time as a barber. Accordingly, information regarding the Veteran’s employment from 2004 through 2008 is required. The Veteran is advised that the failure to provide the above requested information could negatively affect his claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (“The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.”). The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities. After securing any necessary releases, request any relevant records identified. In addition, obtain updated VA treatment records dated since April 22, 2019 as well as the scanned orthopedic record referenced in the June 20, 2018 VA record entry. If any requested records are unavailable, the Veteran should be notified of such. 2. Ask the Veteran to fully complete a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, to include detailing all education and training as well as all full-time or part-time employment after 2004. If the Veteran has been self-employed during the appeal period, ask him to provide financial information, such as income tax return forms that include his net and gross profits, for all periods of self-employment. 3. After the above record development is completed to the extent possible, schedule the Veteran for a VA knee examination to determine the current nature and severity of his service-connected right knee disability. The claims file should be reviewed in conjunction with the examination. All indicated tests should be conducted and the results reported. Range of motion testing should be undertaken, and should be tested actively and passively, in weight bearing, and after repetitive use. (a.) For each range of motion testing conducted for the for the right knee, the examiner must state where in the range of motion the Veteran reports that he begins to experience pain. If the examiner is unable to conduct any of 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. (b.) The examiner should also state whether there is likely to be additional range of motion loss due to flare-ups and due to pain, weakness, fatigability, or incoordination. If so, the examiner is asked to describe the additional loss, in degrees, if possible. In doing so, the examiner should elicit relevant information as to the Veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the Veteran's functional loss due to flares based on all the evidence of record, including the Veteran's lay information. (c.) 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). (d.) The examiner should also reconcile the conflicting findings as to whether the Veteran has ever had a semilunar cartilage condition. In so opining, the examiner should address the November 2013 examiner’s statement that the Veteran had a history of a right knee meniscal tear and the August 2018, October 2018, and March 2019 VA examiners’ findings that the Veteran did not now have or ever had a meniscus condition. (e.) The examiner should also clarify the October 2018 examiner’s conflicting findings that the Veteran had “severe” right knee lateral instability with the finding that right knee anterior instability and lateral instability joint tests were normal and posterior instability and medial instability joint testing were “1+.” A complete rationale should be provided for all opinions and conclusions expressed. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Anderson 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.