Citation Nr: 21027700 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 12-02 668A DATE: May 6, 2021 REMANDED Entitlement to a separate compensable rating for left knee instability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from July 1994 until July 1998. The Veteran testified at a hearing before the undersigned Veterans Law Judge in November 2015. A transcript of that hearing is of record. In September 2019, the Board remanded the appeal for further development to include obtaining a VA medical examination to determine the existence and current severity of any left knee instability associated with his service-connected left knee degenerative arthritis and referral to the VA's Director of the Compensation and Pension Service for extraschedular consideration of TDIU. For the issue of left knee instability, the Board determines there has not been substantial compliance with the Board's remand. For the issue of TDIU, there has been substantial compliance with the Board's prior remand instructions, but the Board cannot proceed to adjudication for the reasons detailed below. Another remand is now required for both issues. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a separate compensable rating for left knee instability is remanded. The Veteran asserts that he has instability in his left knee. The question for the Board is whether a separate compensable rating for left knee instability is warranted. The claim must be remanded again because the March 2020 VA examination is inadequate. The examiner was instructed to identify any symptoms related to left knee instability and report on the functional impact of the left knee instability alone. Additionally, the examiner was instructed to estimate the existence and level of impairment if not possible to provide a specific measurement or opinion based upon direct observation. The examiner failed to do so stating that they were "unable to evaluate claimed left knee instability due to Veteran's refusal to remove his left knee brace and participate in range of motion and stability testing. As noted above, the Veteran refused to remove his left knee brace so that stability testing could be conducted on his left knee during the March 2020 VA examination. The Veteran is notified that the duty to assist is not a one-way street. While VA has a duty to assist in developing evidence pertinent to a claim, a Veteran also has a duty to assist and cooperate with VA in developing evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). On remand, the Veteran should be provided another opportunity to participate in a VA examination to evaluate any left knee instability. The examiner should consider the Veteran's willingness to participate in the examination and determine whether an examination is necessary or whether the requested information can be obtained based on a review of the relevant treatment records. Entitlement to TDIU is remanded. Pursuant to the Board's remand instructions, claim was referred to the Director of the Compensation and Pension service for an initial determination of entitlement to extraschedular TDIU. In a December 2020 memorandum, the Director noted that the Veteran's education and employment history was incomplete because he had not submitted a VA Form 21-8940, Application for TDIU. In February 2021, the AOJ sent the Veteran a blank VA Form 21-8940 for completion. To date, he has not returned a completed TDIU application. The TDIU claim is intertwined with the remanded claim. On remand, he should be asked again to complete the TDIU application. The matters are REMANDED for the following action: 1. Take all appropriate action to obtain any treatment records since September 2020. 2. Provide the Veteran with a VA Form 21-8940, Application for TDIU and request that he submit the completed form, with all appropriate information. Thereafter, take all appropriate action on the TDIU claim. 3. After completion of paragraph 1, schedule the Veteran for an examination by an appropriate clinician to determine the existence and current severity of any instability associated with his service-connected left knee degenerative arthritis. Copies of all pertinent records must be made available to the examiner for review. To the extent possible, the examiner should identify any symptoms and functional impairments due to instability alone and discuss the effect of the Veteran's left knee instability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding instability or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the existence and level of impairment of instability based on the other evidence of record and the Veteran's statements. If the Veteran is unwilling or unable to participate in the examination, the examiner must indicate that and attempt to provide the requested information based on a review of the treatment records. If that cannot be done, the examiner should explain why. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including TDIU claim. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Collins, 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.