Citation Nr: 21013628 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 10-17 386 DATE: March 10, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for limitation of flexion of the left knee is remanded. Entitlement to an initial rating in excess of 10 percent for limitation of flexion of the right knee is remanded. Entitlement to a compensable initial rating for limitation of extension of the left knee is remanded. Entitlement to a compensable initial rating for limitation of extension of the right knee 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 January 1968 to January 1971. This appeal to the Board of Veterans’ Appeals (Board) is from a March 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2015, the Veteran testified in support of these claims during a videoconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. In June 2015, the Board remanded these claims back to the RO, i.e., back to the Agency of Original Jurisdiction (AOJ) for issuance of a Statement of the Case (SOC). The Board remanded these claims again in April 2018 and September 2020 for still more development. Unfortunately, however, not all of that required development has been completed, so the Board is again remanding these claims. 1. Entitlement to an initial rating in excess of 10 percent for limitation of flexion of the left knee is remanded. 2. Entitlement to an initial rating in excess of 10 percent for limitation of flexion of the right knee is remanded. 3. Entitlement to a compensable initial rating for limitation of extension of the left knee is remanded. 4. Entitlement to a compensable initial rating for limitation of extension of the right knee is remanded. While the Board sincerely apologizes for the even more delay that will result from again remanding, rather than deciding, these claims, this still additional development is mandatory – not instead discretionary – and needed so the Board has the required evidence to decide the appeal of these claims. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). In September 2020, the Board remanded these claims to try and obtain adequate VA examinations concerning these claims since the prior remand of these claims had not accomplished that – even to an extent that could be considered substantial compliance, even if not direct or exact compliance. In particular, the Board found that the January 2019 VA examination, which was done pursuant to the Board’s prior April 2018 remand directive, was inadequate because the examiner had provided insufficient information regarding any additional functional loss the Veteran experiences during his reported flare-ups. The Veteran consequently was provided another VA examination in October 2020, pursuant to the Board’s September 2020 remand directive to try and rectify this shortcoming in the prior examination, but even this additional examination is inadequate. First, the October 2020 VA examiner’s findings appear to be inconsistent with the other medical evidence of record. In this regard, the October 2020 VA examiner indicated the Veteran did not report flare-ups of his bilateral (left and right) knee disability. The examiner noted the Veteran had full muscle strength with bilateral knee flexion and extension, with no muscle atrophy, which is directly in conflict with the January 2019 VA examination finding that he had reduced muscle strength with bilateral knee flexion and extension and had guarding posture and reduced effort related to extension of his knees from the flexed position. The January 2019 VA examiner also found that the Veteran had muscle atrophy and noted his guarding during bilateral knee extension and reduced activity have resulted in generalized body muscle mass loss, particularly in his lower extremities. This is consistent with the April 2016 Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ), prepared by the Veteran’s private physician, showing the Veteran had reduced muscle strength, 2/5, bilaterally, with muscle atrophy. Additionally, the October 2020 VA examiner found that the Veteran’s bilateral knee disability did not impact his ability to perform any type of occupational tasks, while the January 2019 VA examiner found otherwise. The January 2019 VA examiner noted the Veteran was unable to perform occupational tasks requiring kneeling, squatting or crawling and that he would not be able to stand or walk for more than 30 minutes without a rest break due to his bilateral knee disability. In a written statement recently received in January 2021, the Veteran asserts that the October 2020 VA examination was cursory, and that the examiner spent less than 10 minutes doing the evaluation and did not take any measurements of range of motion.   In fact, it appears the VA examiner failed to consider all of the Veteran’s relevant history or complaints, and the examination is insufficient also because the examiner provided no explanation for the Veteran’s reported symptoms or any reconciliation of the conflicting findings of record. Accordingly, the October 2020 VA examination is inadequate, and a new Stegall-compliant VA examination is necessary to properly decide the merits of these claims. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided); see also Stegall, 11 Vet. App. at 271 (noting that, when the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). 5. Entitlement to a TDIU also is remanded. This claim for a TDIU is “inextricably intertwined” with the other claims on appeal for higher ratings for the left and right knee disabilities. See 38 C.F.R. § 19.31; Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that claims are inextricably intertwined when they are so closely tied together that a final Board decision on one cannot be rendered until the others are adjudicated). This avoids piecemeal adjudication of claims with common parameters. See Harris, 1 Vet. App. at 183. Accordingly, these claims (all of them) are REMANDED for the following action: 1. Obtain and associate with the claims file any updated VA and/or private treatment records dated from March 2020 to the present. All records and/or responses received should be documented in the claims file and the Veteran appropriately notified if unable to obtain records he provides sufficient information concerning. See 38 C.F.R. § 3.159(c) and (e).   2. After receiving all additional treatment or other relevant records, again schedule the Veteran for an appropriate VA examination reassessing the severity of his left and right knee disabilities – including, if necessary, addressing the changes to the Rating Schedule for Musculoskeletal Disabilities that recently took effect on February 7, 2021. The claims file, including a complete copy of this remand, must be made available to and reviewed by the examiner in conjunction with the examination. All necessary testing and evaluation must be performed, and all findings reported in detail addressing all applicable rating criteria. To this end, the examiner should describe the nature and severity of all manifestations of the Veteran’s left and right knee disabilities. The examiner must test and record the range of motion for both knees in active motion, passive motion, 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. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. The extent of any weakened movement, premature or excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, premature or excess fatigability, or incoordination in terms of the degree of additional range of motion loss.   The examiner is reminded that he should specify the degree of additional functional loss/motion due to pain, to include during flare-ups, or state why it was not feasible to provide such information, as required for an adequate examination. If the examiner finds no flare-ups, the examiner must address any conflicting medical evidence of record, in particular, the examiner must reconcile this finding with the Veteran’s reported flare-ups during his prior January 2019 VA examination and in the April 2016 DBQ. There should be a complete discussion of the Veteran’s flare-ups, to include their severity, frequency, and duration, precipitating and alleviating factors, and an opinion as to whether pain, weakness, fatigability, or incoordination significantly limit functional ability with flare-ups. See Sharp v. Shulkin, 29 Vet. App. 32 (2017). Additionally, the examiner should determine whether the Veteran has ankylosis of his knees; instability or subluxation of his knees (including with consequent prescription of a brace, cane, or walker); nonunion of the tibia and fibula with loose motion and requiring knee braces; dislocated semilunar cartilages with frequent episodes of locking, pain, and effusion; or severe painful motion or weakness in the knees.   It is essential the examiner provide rationale for his/her findings, preferably citing to evidence in the file supporting conclusions and/or accepted medical authority, and reconcile any findings that are inconsistent with other findings in the record. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. J. In, 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.