Citation Nr: 21032066 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 18-34 291 DATE: May 25, 2021 REMANDED Entitlement to an initial disability rating in excess of 10 percent for patellofemoral syndrome of the left knee is remanded. Entitlement to an initial disability rating in excess of 10 percent for patellofemoral syndrome of the right knee is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served from December 2004 to December 2008. These matters come before the Board of Veterans' Appeals (Board) from a June 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In January 2020, the Board granted entitlement to an initial 10 percent disability ratings for patellofemoral syndrome of the left and right knees with an effective date of December 14, 2008. However, the Board denied the issues of entitlement to an initial disability rating in excess of 10 percent for patellofemoral syndrome of the left and right knees. The January 2020 Board decision was then appealed by the Veteran to the United States Court of Appeals for Veterans Claims (Court). A Joint Motion to Vacate the Board's denial of entitlement to an initial disability rating in excess of 10 percent for patellofemoral syndrome of the left and right knees was issued in January 2021. Per the Joint Motion, the issues of entitlement to an initial disability rating in excess of 10 percent for patellofemoral syndrome of the left and right knees has returned to the Board for additional adjudication. However, the Board regrets further delay buts finds a remand is necessary in order to further develop the claim to include an additional VA examination and retrospective opinions. Further, the issue of TDIU was remanded by the Board in the January 2020 Board decision. Given the Board's remand, the issue of TDIU was not addressed in the January 2021 Joint Motion because the Court did not have jurisdiction over the claim. See Breeden v. Principi, 17 Vet. App. 475, 478 (2004) (per curiam order) (holding that a Board remand "does not represent a final decision over which this Court has jurisdiction"). However, the issue of TDIU has been merged with these issues under docket number 18-34 291 and is, therefore, also remanded as will be further explained below. 1. Entitlement to an initial disability rating in excess of 10 percent for patellofemoral syndrome of the left knee is remanded. 2. Entitlement to an initial disability rating in excess of 10 percent for patellofemoral syndrome of the right knee is remanded. In this case, the Veteran seeks an initial disability rating in excess of 10 percent for patellofemoral syndrome of the left and right knees. As stated above, the Board addressed and denied these issues in January 2020 and the issues were appealed to the Court in January 2021. In the Joint Motion, the parties agreed that the Board erred when it did not provide an adequate statement of reasons or bases for its conclusion in violation of 38 U.S.C. § 7104(d)(1). The Joint Motion noted that during the April 2015 VA knee and lower leg examination, the Veteran reported flare-ups resulting in stiffness and decreased mobility. The examiner stated he was unable to describe any additional functional loss during any flare-ups or pain in terms of motion. Consequently, the parties noted the Board did not address the adequacy of the examination or provide a determination as to whether a retrospective opinion was necessary. See Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017) (noting that direct observation of functional impairment during a flare-up is not a prerequisite to offering an opinion regarding the functional impact of flare-ups). Therefore, the parties found the Board erred by failing to provide an adequate statement of reasons or bases for its determination. See Tucker v. West, 11 Vet. App. 369, 374 (1998) ("Where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate, a remand is the appropriate remedy."). Therefore, the Board finds a remand is necessary in order to provide the Veteran with an additional VA examination and to obtain retrospective opinions to assess the severity of the Veteran's left and right knee patellofemoral syndrome. 3. Entitlement to a TDIU is remanded. The January 2020 Board decision remanded the issue of entitlement to a TDIU in order to further develop the claim to include clarification as to the Veteran's employment history. Specifically, the Board decision noted that a June 2018 "Veteran's Application for Increased Compensation Based on Unemployability" that he stopped working on February 2018. However, the Board additionally noted VA treatment mental health consultation records from 2019 indicated he was employed full time as recently as September 2019 but lost his job in October 2019. Therefore, a remand was necessary in order to obtain clarification regarding the Veteran's employment history. Due to the Board remanding the issue, it was not addressed by the Court in the Joint Motion given the lack of jurisdiction. Breeden, 17 Vet. App. at 478. The issue of entitlement to a TDIU has been merged with the remanded issues of entitlement to an initial disability rating in excess of 10 percent for patellofemoral syndrome of the left and right knees under docket number 18-34-291. Additionally, given the remanded issues of entitlement to an initial disability rating in excess of 10 percent for patellofemoral syndrome of the left and right knees, the Board finds the issue of entitlement to a TDIU to be inextricably intertwined with these remanded issues. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Therefore, a final decision on the issue cannot be rendered at this time. Id. The matters are REMANDED for the following actions: 1. Provide the Veteran with an additional VA examination to determine the severity of his left and right knee patellofemoral syndrome. Obtain addendum retrospective opinions based on the April 2015 VA examination regarding the left and right knees. The Veteran's claims folder should be provided to the reviewer prior to the completion of the opinion. The examiner should provide ranges of motion at the time of those examinations of the Veteran's left and right knees in active and passive motion, weight-bearing and nonweight-bearing, and after repetitive use. Further, the examiner shall provide a retrospective opinion based on the April 2015 examinations regarding the severity, frequency, and duration of flare-ups; name the precipitating and alleviating factors; and estimate, per the Veteran, to what extent, if any, such flare-ups affect functional impairment, including estimated ranges of motion. If the examiner is unable to provide retrospective opinions, he or she should clearly explain why this is so. 2. Ask the Veteran to report his full employment history and earnings during the period since December 2008, to include the starting and ending dates of any employment during that period. Once such information is received, the AOJ should perform any additional development deemed necessary. 3. Then, readjudicate the issues on appeal, to include the issue of entitlement to a TDIU. If the benefit sought on appeal remains denied, the Veteran and representative should be provided a supplemental statement of the case (SSOC), an appropriate period of time should be allowed for response, and the case should thereafter be returned to the Board for further appellate review. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. DeBoer, 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.