Citation Nr: 21012868 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 15-40 776 DATE: March 5, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for a thoracic strain is remanded. Entitlement to a disability rating in excess of 10 percent for left knee medial compartment narrowing status post anterior cruciate ligament (ACL) repair is remanded. Entitlement to a disability rating in excess of 50 percent for unspecified trauma and stressor related disorder with alcohol use disorder and traumatic brain injury (TBI) before December 10, 2019 and in excess of 70 percent thereafter is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from July 2000 to July 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a January 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In the November 2015 Substantive Appeal, the Veteran asked for a hearing before the Board by live videoconference. VA scheduled the hearing for November 2018 and notified the Veteran. Despite agreeing to appear, the Veteran failed to report. He has provided no explanation and has not asked that the hearing be rescheduled. His hearing request, therefore, is deemed withdrawn. See 38 C.F.R. §§ 20.702(d), 20.704(d) (2018). In July 2019, the Board added the issue of entitlement to a TDIU to the appeal pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), and remanded the Veteran’s claim for additional development. After completion, the RO increased the Veteran’s mental disorder to 70 percent disabling, effective December 10, 2019. Because higher ratings are available before and after December 19, 2019, and the Veteran is presumed to seek the maximum benefit allowable by law and regulation, the claim remains on appeal. Ab v. Brown, 6 Vet. App. 35, 38 (1993). The case is once again before the Board. 1. Entitlement to a disability rating in excess of 10 percent for a thoracic strain is remanded. Once VA undertakes to provide an examination or obtain an opinion, it must ensure that it is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For a VA joints examination to be adequate, the examiner must ask the Veteran about the “severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares.” Sharp v. Shulkin, 29 Vet. App. 26, 34-35 (2017). The examiner must then offer a flare opinion based on estimates from relevant sources, including the veteran’s lay statements describing functional limitation. Id. In March 2015, the Veteran reported severe flares once every two months that lasted a week to a week-and-a-half. He also explained that he would stay home from work when experiencing a back flare and estimated missing work 20 to 30 times in the last year. Unfortunately, the examiner did not offer an opinion on the functional impact of flare-ups, so the Board remanded for a new examination. There, the Veteran reported experiencing constant upper back pain that “gets severe” (i.e., flares up) every six months. Despite this, the examiner found no flare-ups reported and, as a result, did not offer opinion on the Veteran’s flare-ups. Given the inconsistent statements about the presence of flare-ups, a new examination is necessary. 2. Entitlement to a disability rating in excess of 10 percent for left knee medial compartment narrowing status post anterior cruciate ligament (ACL) repair is remanded. The Veteran is currently in receipt of a 10 percent disability rating for his knee under Diagnostic Code (DC) 5260 for painful motion. “[E]valuation of a knee disability under DC 5260 does not preclude . . . separate evaluation of a meniscal disability of the same knee under DC 5258 or 5259.” Lyles v. Shulkin, 29 Vet. 107, 108 (2017). In July 2019, the Board remanded the Veteran’s claim to schedule the Veteran for a new examination. There, the examiner reviewed the Veteran’s medical history, noting his meniscal tear and repair during service. Despite this, the examiner answered “no” when asked whether the Veteran ever had a meniscus condition. As the Board cannot make a fully informed decision on the current nature and severity of the Veteran’s knee disability, remand is required. 38 C.F.R. § 4.2 (“[I]f the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.”). 3. Entitlement to a disability rating in excess of 50 percent for unspecified trauma and stressor related disorder with alcohol use disorder and traumatic brain injury (TBI) before December 10, 2019 and in excess of 70 percent thereafter is remanded. When the Board remanded the Veteran’s claim in July 2019, it directed the RO to furnish the Veteran and his representative with a Supplemental Statement of the Case (SSOC) if any benefit sought is not granted. As noted above, the RO increased the Veteran’s mental disorder to 70 percent disabling on remand and in the decision, explicitly stated that the award represented only a partial grant of the benefits sought on appeal. Pursuant to the Board’s remand directive, the RO was then required to furnish the Veteran with an SSOC for the issue. It did not do so. Accordingly, remand is required to comply with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. The Veteran’s claim for TDIU is inextricably intertwined with his claim for an increased rating for his service-connected back, knee, and psychiatric disabilities. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim pending adjudication. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Finally, recall that the Board added the issue of entitlement to a TDIU to the appeal in July 2019 pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), and remanded the Veteran’s claim for additional development. Among other things, it directed the RO to send the Veteran a VA Form-21-8940 (“Veteran’s Application for Increased Compensation Based on Unemployablity”). The RO complied but the Veteran did not respond. As the Board is remanding the case for additional development, it will afford the Veteran another chance to supplement the record with his employment and earnings history. The matters are REMANDED for the following action: 1. Furnish the Veteran and his representative with an SSOC addressing the Veteran’s entitlement to a disability rating in excess of 50 percent for his mental disorder and TBI before December 10, 2019 and in excess of 70 percent thereafter. 2. Contact the Veteran and ask him to complete and return a VA Form 21-8940. 3. Obtain all outstanding VA treatment records and associate them with the claims file. 4. Then schedule the Veteran for a VA examination to determine the current nature and severity of his left knee and back disabilities. The claims file should be made available to and reviewed by the examiner. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. Full range of motion testing must be performed where possible. The joint involved should be tested in both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of the opposite undamaged joint. 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 the basis for this decision. The examiner must also attempt to elicit information about the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner should 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). All diagnostic testing needed to ascertain the current nature and severity of the Veteran’s back and knee disabilities should be performed and a written interpretation should be associated with the examination report. 5. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran’s pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Canedy, 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.