Citation Nr: 21030782 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-31 351 DATE: May 19, 2021 REMANDED Entitlement to a disability rating in excess of 30 percent from August 1, 2021, for left knee degenerative joint disease (DJD), status post total knee replacement is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served active duty service from May 1978 to May 1981 and from October 1981 to September 1991. The Veteran appeals March 2015 rating decision by the Agency of Original Jurisdiction (AOJ). Most recently, in February 2021, the Board of Veterans' Appeals (Board) remanded the Veteran's claim to the AOJ for further action consistent with the Board's remand directives. As such, the case has returned to the Board for further appellate proceedings. However, as explained below, the Board finds that another remand is necessary in order to provide the Veteran with an adequate examination. 1. Left Knee Disability In the August 2020 rating decision, the AOJ granted an increased temporary 100 percent disability rating for the Veteran's left knee replacement under Diagnostic Code (DC) 5055 effective June 3, 2020 to July 31, 2021. A 30 percent disability was assigned effective August 1, 2021. When, as here, a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In February 2021, the Board remanded the claim in order to afford the Veteran with an updated examination after his period of temporary 100 percent disability ratingwhich ends July 31, 2021. Thus, the Board ordered that an examination not be scheduled until a date no earlier than August 1, 2021. However, the Veteran was scheduled for and attended an examination in March 2021. In the February 2021 remand, the Board specifically found that this issue was not ripe for adjudication as the severity of the Veteran's left knee disability as of August 1, 2021, a future date, could not be made without a contemporaneous examination. As a result, the Board finds there has not been substantial compliance with its prior remand directives and remand is necessary in order to afford the Veteran with an examination at the termination of his temporary 100 percent disability rating under DC 5055 for his left knee disability. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. TDIU In February 2021, the Veteran's representative submitted a claim of entitlement to TDIU with an accompanying brief, based in part on the Veteran's service-connected left knee disability. The Veteran contends that he has been too disabled to work since April 2012. See February 2021 VA Form 21-8940. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a request for TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, is part of a claim for increased compensation. Thus, under Rice, the Board has jurisdiction over the TDIU claim. Further development and adjudication of the Veteran's rating claim on appeal may provide evidence in support of the claim for TDIU. The Board has therefore concluded that it would be inappropriate at this juncture to enter a final determination on that issue. See Henderson v. West, 12 Vet. App. 11 (1998). 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 left knee disability 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 severity of his left knee disability at the completion of the temporary total evaluation in effect through July 31, 2021. THE EXAMINATION SHALL NOT BE SCHEDULED EARLIER THAN AUGUST 1, 2021, or later. 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. 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.