Citation Nr: 21032545 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 10-29 055 DATE: May 27, 2021 REMANDED Entitlement to a rating in excess of 30 percent for status post total left knee replacement is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active military service from September 1989 to February 1994. These issues are on appeal from May 2009 and August 2017 rating decisions. In January 2016, the Veteran testified before the undersigned at a Board of Veterans' Appeals (Board) hearing. In September 2017, the Board denied these claims. The Veteran appealed the Board's denials to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Partial Remand (JMPR) dated in July 2018, the Court in an August 2018 Order, vacated the Board's September 2017 denials and remanded the matters to the Board. In March 2019, the Board remanded these matters for further development. 1. Entitlement to a rating in excess of 30 percent for status post total left knee replacement is remanded. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the knee issue. In March 2019, the Board found the July 2017 examination report to be inadequate because the examiner did not report the limited functional ability of the left knee during a flare-up in terms of ranges of motion and remanded for a new VA examination to be obtained. A VA examination was obtained in January 2021. At the examination, the Veteran reported flare-ups of the left knee. He stated that during a flare-up, he experienced painful movement and an inability to squat or kneel down. The examiner noted that the examination was not being conducted during a flare-up. The examiner then found that the procured evidence (statements from the Veteran) did not suggest pain, fatigability, weakness, lack of endurance, or incoordination significantly limited the Veteran's functional ability with flare-ups, and did not estimate the Veteran's ranges of motion during a flare-up. The Board finds the examiner's statement to be contradictory to the Veteran's statements of his symptoms during a flare-up. Accordingly, another remand is required to obtain an adequate VA examination and opinion. Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Entitlement to a TDIU is remanded. Finally, because a decision on the remanded knee issue could significantly impact a decision on the TDIU issue, the issues are inextricably intertwined. A remand of the TDIU claim is required. The matters are REMANDED for the following actions: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected status post total left knee replacement. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement 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). In so doing, the examiner must 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 based on direct observation, the examiner must an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement 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). 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU. If the benefits sought are not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shauna M. Watkins, 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.