Citation Nr: 21029371 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 17-64 059 DATE: May 13, 2021 ISSUES 1. Entitlement to an initial disability rating in excess of 10 for right knee, status post open reduction internal fixation, to include consideration of an extraschedular rating. 2. Entitlement to an initial disability rating in excess of 10 percent for left knee, status post open reduction internal fixation, to include consideration of an extraschedular rating. 3. Entitlement to an initial compensable disability rating for surgical scars, bilateral knees as secondary to the service-connected disability of right knee, status post open reduction internal fixation. 4. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). REMANDED Entitlement to an initial disability rating in excess of 10 for right knee, status post open reduction internal fixation, to include consideration of an extraschedular rating, is remanded. Entitlement to an initial disability rating in excess of 10 percent for left knee, status post open reduction internal fixation, to include consideration of an extraschedular rating is remanded. Entitlement to an initial compensable disability rating for surgical scars, bilateral knees as secondary to the service-connected disability of right knee, status post open reduction internal fixation is remanded. Entitlement to a TDIU is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1975 to April 1975. This case comes to the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned during a March 2021 Board videoconference hearing; a copy of the transcript is of record. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim for that disability when raised by the record. The Veteran filed claims for TDIU in 2016. Therefore, the issue of entitlement to TDIU is before the Board. The Board finds that additional evidentiary development is required before adjudication of this claim. The Veteran was last afforded VA examinations for her disabilities on appeal in August 2017. The Veteran submitted a statement in November 2018 that her pain was getting worse every day; she also testified before the undersigned as to the worsening of these conditions. Specifically, she stated that she had to lie down for four hours every day to relieve swelling between her bus routes as a school bus driver. That is, she had to go home and elevate her legs, because they are so swollen, every day, to be able to go back and do the end of her route at the end of the day. The Veteran also noted that she had to use a rollator walker to walk. Extraschedular consideration is provided for under 38 C.F.R. § 3.321 (b) (1) when the record presents such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." Arguably, as the current rating under Diagnostic Code 5260 does not contemplate the impairment allegedly caused by the Veteran's swelling, referral for extraschedular consideration is required. As such, the Board finds that remand is warranted to assess the current severity of the service-connected right knee, left knee, and surgical scars. Moreover, the Board finds that the matters regarding entitlement to an initial disability rating in excess of 10 for right knee, status post open reduction internal fixation, and entitlement to an initial disability rating in excess of 10 percent for left knee, status post open reduction internal fixation should be referred for extraschedular consideration. The matters are REMANDED for the following action: 1. Complete any additional evidentiary development necessary to adjudicate a claim for a TDIU, to specifically include requesting, with the Veteran's assistance, all records from her previous employers, including any medical records and/or administrative decisions pertaining to disability benefits. All actions to obtain the requested records should be fully documented in the electronic claims file. If they cannot be located or no such records exist, the Veteran and her attorney should be so notified in writing. 2. Schedule the Veteran for an appropriate VA examination to assess the manifestations of the service-connected right knee, left knee, and surgical scars. The electronic record, to include a copy of this remand, must be reviewed in conjunction with the examination. All testing deemed necessary must be conducted and results reported in detail. The examiner should: Conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, express any functional loss in terms of additional degrees of limited motion of the Veteran's disability, i.e., the extent of the Veteran's pain-free motion. Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), please record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. If a joint cannot be tested on "weight-bearing," please specifically indicate why that testing cannot be done. Pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is instructed to inquire whether there are periods of flare-ups. If the answer is "yes," the examiner should state their severity, frequency, and duration explaining if there are any additional or increased symptoms and limitations experienced during flares. The examiner must ALSO name the precipitating and alleviating factors. The examiner must ALSO estimate, "per [the] veteran," to what extent, if any, they affect functional impairment. The examiner should address the functional effects of her service-connected disabilities, either individually or taken in their totality, relative to her ability to obtain or maintain a substantially gainful occupation that her education and occupational experience would otherwise permit her to undertake. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. 3. Refer the issues of entitlement to an initial disability rating in excess of 10 for right knee, status post open reduction internal fixation, and entitlement to an initial disability rating in excess of 10 percent for left knee, status post open reduction internal fixation to the Director of Compensation for consideration of extraschedular evaluations. 4. Review the record to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and her attorney the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M.K., 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.