Citation Nr: 21025101 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 09-49 574 DATE: April 27, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for service-connected right knee strain is remanded. Entitlement to an initial rating in excess of 10 percent for service-connected left knee strain is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served honorably on active duty in the United States Army from September 1980 to September 1984. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2007 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In an April 2016 decision, the Board denied the Veteran’s claims for initial ratings in excess of 10 percent for left and right knee strains. He appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2017 memorandum decision, the Court vacated that Board decision and remanded the claims to ensure that VA’s duty to assist the Veteran was satisfied. In June 2018, the Board remanded these claims for further development. This case was last before the Board in July 2020, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denials and returned the case to the Board. There has been at least substantial compliance with the Board’s remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claims and to afford him every possible consideration. 1. Entitlement to an initial rating in excess of 10 percent for service-connected right knee strain is remanded. 2. Entitlement to an initial rating in excess of 10 percent for service-connected left knee strain is remanded. 3. Entitlement to TDIU is remanded. The Veteran contends that higher ratings are warranted for his service-connected bilateral knee disabilities and that a TDIU is also warranted due to the effects of his service-connected disabilities. The Board finds that a remand is warranted to obtain an adequate medical examination and to obtain outstanding treatment records. A medical examination “is adequate where it is based upon consideration of the veteran’s prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board’s ‘evaluation of the claimed disability will be a fully informed one.’” Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994)) The Veteran’s knees were examined in February 2021. The Veteran’s initial range of motion for his right knee was noted to be 0 degrees extension to 0 degrees flexion (in other words, immobile). His left knee was measured 0 degrees extension to 25 degrees flexion. The Veteran reported flare-ups in both knees and on repetitive motion, the examiner noted range of motion bilaterally was 0 degrees to 20 degrees. The examiner further estimated that based on the Veteran’s description of functional impairment during a flare-up, that his range of motion would be limited from 0 degrees extension to 10 degrees flexion, bilaterally. The Board infers that likely the February 2021 VA examination report contains a typographical error somewhere with regard to the range of motion findings because as it stands the range of motion findings show the Veteran’s right knee went from immobile to improved movement of 20 degrees flexion with repetitive motion and movement to 10 degrees flexion during flare-ups. While the examination report is not facially inadequate as it pertains to the left knee, in light of the inconsistent or perhaps typographical erroneous information pertaining to the right knee, the Board finds it difficult to rely on the examination report to adjudicate either knee at this time. Clarification is required to ascertain the correct range of motion findings for the knees bilaterally. The Board also finds that a remand is warranted to obtain missing private treatment records. In his January 2021 TDIU application, the Veteran indicated that he had received treatment for his back, knees, and feet from Spine and Pain Center and Duke Neurosurgery Spine and Pain of Raleigh. Those records, if any, have not been associated with the Veteran’s file. Because the clinical records of the treatment, if obtained, could bear on the outcome of the Veteran’s appeal, efforts must be made to procure them. 38 U.S.C. § 5103; 38 C.F.R. § 3.159(c). See also 38 C.F.R. § 3.159(e)(2) (if VA becomes aware of the existence of relevant records before deciding a claim, VA will, among other things, request that the claimant provide a release for the records). Lastly, because the development sought in connection with the Veteran’s claim for higher ratings for his service-connected knee disabilities may impact his TDIU claim, the Board finds the issue to be intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Holland v. Brown, 6 Vet. App. 443 (1994); Henderson v. West, 12 Vet. App. 11 (1998). As such, the TDIU claim will be remanded as well. Additionally, the evidence currently of record shows that the Veteran was employed at times or had received income in the past 12 months. See January 2021 TDIU application. The Board notes that part-time employment does not necessarily foreclose the possibility of an award of TDIU since a finding of marginal employment can establish entitlement to TDIU. Marginal employment generally shall be deemed to exist when a claimant’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(b). Marginal employment may also be established, on a facts found basis, when earned annual income exceeds the poverty threshold, including, but not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. Here, there is insufficient evidence regarding the Veteran’s work history and earned income during the appeal period. The AOJ should afford the Veteran an opportunity to submit relevant evidence regarding both his employment history and his income during the appeal period. The matters are REMANDED for the following action: 1. Assist the Veteran with uploading updated treatment records. 2. Ask the Veteran to provide a release for relevant records of treatment from any private practitioners or, and to identify, and provide appropriate releases for, any other care providers who may possess new or additional evidence pertinent to the issue on appeal. Specifically, treatment records from Spine and Pain Center and Duke Neurosurgery Spine and Pain of Raleigh should be sought. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran should be notified. 3. Contact the Veteran to obtain clarification regarding his work history from April 2005 to the present. The Veteran should be asked to submit evidence (e.g., pay stubs, W2 Forms, tax returns, letters from employers, etc.) documenting marginal employment, if any, due to his service-connected disabilities. 4. Also arrange to have the Veteran scheduled for appropriate VA examinations of his right and left knees. The examiner should provide a full description of the Veteran’s associated functional impairments as they relate to the relevant rating criteria. The examination must include testing for pain on both active and passive motion, in weight bearing and non-weight bearing, if possible. If such testing is not feasible, the examiner should explain why. The examiner must attempt to elicit information regarding functional loss due to flare-ups and repeated use over time. If the Veteran suffers from such loss, the examiner should express the loss in terms of degrees of additional loss in range of motion (i.e., in addition to that observed clinically), if feasible, taking into account all of the evidence, including the Veteran’s statements and past medical records with respect to the frequency, duration, characteristics, and severity of his limitations. Even if the Veteran is not exhibiting functional loss due to flare-ups and/or repeated use during the examination, the examiner should nevertheless offer an opinion with respect to functional loss based on estimates derived from information procured from relevant sources, including lay statements of the Veteran. An examiner must do all that reasonably should be done to become informed before concluding that an opinion cannot be provided without resorting to speculation. That said, if it is the examiner’s conclusion that he or she cannot feasibly provide the requested opinion(s), even considering all of the available evidence, it must be so stated, and the examiner must provide the reasons why offering such opinion(s) is not feasible (Continued on the next page)   5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Gandhi, 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.