Citation Nr: 21022726 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 14-37 887 DATE: April 19, 2021 REMANDED Entitlement to a rating in excess of 10 percent for a left knee disability prior to August 22, 2017, a rating in excess of 20 percent from August 22, 2017 to October 31, 2019, and a rating in excess of 30 percent from December 1, 2020 is remanded. Entitlement to a rating in excess of 10 percent for a right a right knee disability prior to August 22, 2017, a rating in excess of 20 percent from August 22, 2017 to May 13, 2019, and a rating in excess of 10 percent from September 1, 2019 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 September 1981 to September 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a March 2012 rating decision a Department of Veterans Affairs (VA) Regional Offices (RO). A Board hearing was held in November 2017. A transcript is of record. 1. Bilateral Knees In August 2018 and September 2019, the Board remanded the Veteran’s claims to the AOJ for further action consistent with the Board’s remand directives. The claims are back before the Board for further appellate proceedings. Historically, an October 1993 rating decision granted entitlement to service connection for patellofemoral syndrome of each knee assigning each joint a noncompensable rating. In a July 1996 decision the Board denied entitlement to compensable ratings. The Board decision was not appealed, and it is final. 38 U.S.C. § 7104. In the March 2012 rating decision now on appeal, VA increased the evaluation for each knee to 10 percent for patellofemoral syndrome with degenerative arthritis from an effective date of April 21, 2011, the date the Veteran filed his claim for increase. The Board remanded the claims in August 2018 and September 2019 to provide the Veteran with adequate medical examinations. Since that time, the AOJ has increased the Veteran’s bilateral knee disability ratings. The Board notes that this case has a long and complex procedural history, arising from multiple rating decisions by the AOJ, including various periods of convalescence wherein the Veteran is granted a temporary total 100 percent evaluation for both his right and left knees. Ultimately, the Board finds that the most recent VA examination is not adequate for rating purposes. Specifically, the January 2020 VA examination does not comply with the Court’s holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp v. Shulkin, the Court held that a VA examination is inadequate when the VA clinician does not elicit relevant information as to the Veteran’s flares or ask him to describe additional functional loss, if any, he suffered during flares and then does not “estimate the [Veteran’s] functional loss due to flares based on all the evidence of record (including the [Veteran’s] lay information) or explain why [he or she] could not do so.” 29 Vet. App. 26, 35 (2017). The January 2020 VA examiner checked the box indicating that the Veteran did not report that he suffered from flare-ups regarding either knee on examination. See January 2020 VA examination report. However, the Veteran’s VA treatment notes from both before and after the January 2020 VA examination clearly show that he experiences flares regarding his bilateral knee disability. Prior to the January 2020 VA examination, in a July 2019 orthopedics note, the Veteran reported that his left knee pain is an 8/10 but is worse with prolonged walking and better with rest. See July 10, 2019 orthopedics note. Given that the Veteran described a current level of pain that varies from what he experienced on other days, the Board finds this sufficient evidence to describe a flare-up. Additionally, in February 2019, the Veteran described his bilateral knee pain as a current 6/10 but can increase to a level 10/10 when he does a lot of walking. See February 7, 2019 medical history note. In November 2020, after the Veteran’s January 2020 VA examination, the Veteran specifically noted having “flareup of joint stiffness or pain in the winter season.” See November 18, 2020 telephone contact note. Thus, the Board finds that the Veteran consistently and credibly reports symptoms akin to that of flare-ups before and after his January 2020 VA examination. However, as mentioned above, the January 2020 VA examiner simply checked the box that the Veteran did not report flare-ups. See January 2020 VA examination report. The Board finds that it is reasonable to believe that if the Veteran reported symptoms akin to flare-ups, including one notation wherein he specifically uses the word “flareup,” he would likely have the same manifestations upon examination in January 2020. Thus, the January 2020 VA examiner did not elicit relevant information about flare-ups, nor did the examiner determine whether pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-ups, including a failure to describe functional loss in terms of range of motion in degrees and providing such measurements. Therefore, the Board finds that the January 2020 VA examination did not comply with Sharp and remand is necessary for an additional examination. 2. TDIU When a Veteran submits evidence of unemployability in association with a claim for an increased rating, a claim for TDIU benefits is inferred. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, there is evidence that the Veteran’s service-connected bilateral knee disability has contributed to the Veteran’s perceived individual unemployability. In an August 2020 statement, the Veteran indicated he retired from his Postal Service job in October 2020 due to his knee replacement surgery and other service-connected issues. See August 2020 Veteran statement. He detailed his daily duties and explained how his service-connected disabilities, including his bilateral knee disability, made it difficult to satisfactorily complete his job, and as such, he decided to retire. Id. The Veteran provided a July 2020 statement from the Postmaster, B.F. He outlined the Veteran’s physically demanding work duties which require much standing and walking throughout the day, as well as lifting heavy objects and getting in and out of his vehicle 200 to 300 times per day. See B.F. statement. He observed that given the Veteran’s recent knee surgery, the job may be too burdensome for the Veteran. Id. Because the TDIU claim is inextricably intertwined with the increased rating claims the Board is remanding, the issue of entitlement to TDIU must also be remanded. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his bilateral knee disabilities that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. Thereafter, schedule the Veteran for an examination of the current severity of his bilateral knee disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing for both knees. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups The examiner should specifically consider evidence of flare-ups as described by the Veteran in his VA treatment notes, including but not limited to: July 10, 2019 orthopedics note, February 7, 2019 medical history note, and November 18, 2020 telephone contact note. 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). 3. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Katie Poe, 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.