Citation Nr: 21032193 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 14-31 954A DATE: May 26, 2021 REMANDED Entitlement to an increased evaluation higher than 10 percent for right knee tricompartmental osteoarthritis is remanded. Entitlement to an increased evaluation higher than 10 percent for left knee tricompartmental osteoarthritis is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from April 1980 to November 1985. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to an increased evaluation for right knee tricompartmental osteoarthritis 2. Entitlement to an increased evaluation for left knee tricompartmental osteoarthritis The Veteran underwent an examination in April 2014, and again in October 2019. In July 2020, the Veteran's appeal was before the Board. The Board noted the Court, in a precedential opinion, had held, in part, that because a "VA examination did not elicit relevant information as to the Veteran's failures or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record - including the veteran's information- or explain why she could not do so, the... examination was inadequate for evaluation purposes [.]" Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017). The Board noted the 2019 examiner did not estimate the resulting additional functional loss of either knee and remanded the appeal for an opinion taking into account the holdings in Sharp. The RO sought an addendum opinion, and in January 2021, following review of the file the examiner noted "the Veteran would need an evaluation to fully assess ROM to objectively provide an opinion." Accordingly, the July 2020 remand instructions were not substantially complied with, and a remand is once again needed. 3. Entitlement to a TDIU In November 2020, the Veteran supplied a VA Form 21-8940, indicating his knees and depression impact his ability to work. He reported his disabilities affected full-time employment as of May 2012, with a note he last worked full-time being January 2020. His occupation was listed as "Universal P - -." It is not clear what his occupation was, and the Veteran provided no details with regard to the name and address of his employers. A request was made in December 2020 and February 2021 for a completed VA Form 21-8940. As the issues of entitlement to increased evaluations for his knees could impact entitlement to a TDIU, this issue is intertwined with the claim on appeal. The matters are REMANDED for the following action: 1. Afford the Veteran the opportunity to attend a VA examination to assess the current severity of his bilateral knee tricompartmental osteoarthritis. The claims file, to include a copy of this remand, should be made available to the examiner for review of the history in conjunction with the examination, and the examination report should reflect that such review was accomplished. The examiner must test the Veteran's active motion, passive motion, and identify whether or not there is pain with weight-bearing and without weight-bearing. Range of motion findings for active and passive motion should be recorded separately, even if they are the same, and the point at which painful motion begins should be clearly stated. A goniometer should be used for all range of motion testing. The examiner should also state whether the examination is taking place during a period of flare-up or following repeated use over time. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his knee symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). The examiner should note that the VA CLINICIAN'S GUIDE requires the examiner to estimate the range of motion "per [the] Veteran." See VA CLINICIAN'S GUIDE at Ch. 11. 2. Ask the Veteran to submit a completed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to obtain relevant employment information. T. SHERRARD Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Skiouris, 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.