Citation Nr: 21022933 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 16-13 049 DATE: April 19, 2021 REMANDED Entitlement to a higher initial rating in excess of 10 percent for right knee patella alta, status post patella reattachment is remanded. Entitlement to a total disability (TDIU) rating due to service-connected disability is remanded. REASON FOR REMAND The Veteran had active service from January 1997 to January 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a December 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Board remanded the appeal to the Agency of Original Jurisdiction (AOJ) for further development. The Board also found that the issue of entitlement to a TDIU due to service-connected disability was raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) and remanded the issue because it is inextricably intertwined with the underlying higher initial rating claim. The matters have now returned to the Board for review. Entitlement to a higher initial rating in excess of 10 percent for right knee patella alta, status post patella reattachment is remanded. The Veteran contends that the current 10 percent rating for his service-connected right knee patella alta disability does not reflect the severity of the disability. Specifically, he claims that he is unable to run, dance, squat or walk quickly, and that his knees constantly “give out” and cause him to fall, and collapse when he is doing regular, typical activities. See January 2013 Notice of Disagreement (NOD). The Board remanded the appeal in October 2020 to obtain an examination to ascertain the current severity of the Veteran’s service-connected right knee patella alta disability. The Veteran had an in-person VA examination in December 2020. The Veteran stated that his right knee disability had progressively worsened since the last VA examination in 2019 and that his knees are painful, stiff, swell and give out. He further stated that he had a right knee wound that would not heal, and he has been unable to obtain treatment due to appointment unavailability. The VA examiner confirmed that the Veteran had a current right knee wound that was unrelated to his service-connected right knee patella alta disability. Rather than rescheduling the examination until the Veteran could obtain medical treatment for the wound in order that he may undergo testing, the examiner held the examination and noted that due to the right knee wound, he was unable to test the Veteran for initial flexion or extension, or provide an estimate for range of motion after repetitive use over time. Such information is highly relevant to the Veteran’s claim. On December 30, 2020, 10 days after the VA examination, the Veteran reported that he was not in any pain and had no immediate medical concerns. This indicates that the Veteran’s right knee wound healed following the VA examination. As the Veteran cooperated with the development of his claim by attending the December 2002 VA examination and was unable, through no fault of his own, to perform the necessary testing, he should be provided with a new VA examination in order to assess the current nature and severity of the disability. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159, Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide a Veteran with a thorough and contemporaneous medical examination). The Board reminds the Veteran that, “[n]otwithstanding the duty to assist, it remains the claimant’s responsibility to submit evidence to support his claim.” Jones v. Shinseki, 23 Vet. App. 382, 391 (2010); see also 38 C.F.R. § 3.159 (c)(ii); Wood v. Derwinski, 1Vet. App. 190, 193 (1991) (“The duty to assist is not always a one-way street.”). Therefore, if the Veteran fails to cooperate in providing the authorizations or attending a scheduled VA examination without good cause, VA will have to decide the claim based on the available evidence. 38 C.F.R. § 3.655. Entitlement to TDIU due to service-connected disability is remanded. The issue of entitlement to a TDIU is inextricably intertwined with the issue of entitlement to a higher initial rating for right knee patella alta remanded herein, and the development of that claim may affect the determination of the TDIU claim. Accordingly, they must be considered together, and thus, a decision by the Board on the issue of entitlement to a TDIU would be premature. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). The matters are REMANDED for the following action: 1. Obtain the Veteran’s updated VA treatment records. 2. Schedule the Veteran for an examination to determine the current severity of his service-connected right knee disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement 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). The examiner must attempt to elicit information regarding 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, if at all possible, 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 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. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Susan Leary 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.