Citation Nr: 21012800 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 12-10 086 DATE: March 5, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1958 to January 1960. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in September 2014 and March 2018 when it was remanded for additional development.   1. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. The Veteran is service connected for hypertension, left and right hip, low back, cervical spine, and left and right knee disabilities, for a combined schedular rating of 50 percent, effective from June 17, 2009. As noted above in the Introduction, this case was previously before the Board in March 2018. The Veteran has not been provided a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability). Such should be provided to the Veteran, and he should be instructed that such should be returned to VA. In addition, the Veteran was last afforded VA examinations in August 2017 regarding his service-connected musculoskeletal disabilities. The pertinent evidence of record since the most recent examinations shows substantial treatment, suggesting worsening of his disabilities. Under the circumstances, the Board finds that VA is required to afford him a contemporaneous VA examination(s) to assess the current nature, extent, and severity of his service-connected musculoskeletal disabilities. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran’s pertinent medical history); see also Sharp v. Shulkin, 29 Vet. App. 26 (2017); Correia v. McDonald, 28 Vet. App. 158, 166 (2016). Finally, inasmuch as the Veteran does not meet the schedular criteria for consideration of TDIU under 38 C.F.R. § 4.16(a), the evidence suggests that his service-connected disabilities may render him unable to obtain or maintain substantially gainful employment. See June 2009 private treatment record (noting the Veteran is no longer able to do any physical activity, noting right hip, right knee, and back functional limitations). The Board is precluded from considering in the first instance whether TDIU should be assigned on an extraschedular basis, and therefore the case must be referred to the Director, Compensation Service, if the Veteran continues to not meet the schedular criteria for TDIU under 38 C.F.R. § 4.16(a), after the development requested below. Outstanding treatment records should also be secured on remand. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Send the Veteran an Application for Increased Compensation Based on Unemployability, VA Form 21-8940. The Veteran should be advised that the failure to complete and return the form may result in the denial of this claim. 3. Schedule the Veteran for a VA examination(s) (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the current nature and severity of his right and left hip, low back, cervical spine, left knee and right knee disabilities. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should identify all pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and nonweight-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-ups. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or repeated use over time. Based on the Veteran’s lay statements 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 unable to provide such an opinion without resorting to speculation, please provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. If unable to opine without speculation, the examiner should indicate 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). The examiner should also identify any neurologic impairment related to his low back disability. 4. If, and only if, the Veteran fails to meet the schedular criteria for TDIU under 38 C.F.R. § 4.16(a) after the development requested above is completed, refer the issue to the Director, Compensation Service, for a determination in the first instance as to whether the assignment of a TDIU rating is warranted on an extraschedular basis. In providing the requested opinion, the Director, Compensation Service, is asked to review and consider the contemporaneous VA examinations regarding the Veteran’s service-connected musculoskeletal disabilities requested above. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Marley, 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.