Citation Nr: 21041733 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 07-32 267 DATE: July 10, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent from July 31, 2007 to January 31, 2016, and in excess of 30 percent from April 1, 2017 for the Veteran's service-connected right knee disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to March 4, 2008 is remanded. REASONS FOR REMAND The Veteran had active service from June 1970 to June 1990. These issues were previously before the Board. In the most recent May 2020 decision, the Board denied the claims. The Veteran appealed to the Court of Appeals for Veterans Claims (Court). In March 2021, the Court granted the parties' joint motion for partial remand. The Board will discuss the basis for the motion below. 1. Entitlement to a disability rating in excess of 10 percent from July 31, 2007 to January 31, 2016, and in excess of 30 percent from April 1, 2017 for the Veteran's service-connected right knee disability is remanded. In the March 2021 motion, the parties agreed that the Board's May 2020 decision erred by relying on inadequate September 2018, March 2015, February 2013, and July 2007 VA examinations. First, the parties explained that the September 2018 VA examination is inadequate because "the examiner failed to adequately address Appellant's functional loss in terms of the degree of additional range of motion (ROM) for the periods on appeal" pursuant to Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011). The parties noted that the September 2018 VA examiner stated that she could not estimate the Veteran's ROM and functional loss due to pain during the course of the appeal. However, by way of rationale, the examiner stated only that the Veteran "reported his right knee has always been less symptomatic than the left and he has had a good outcome from his surgery." However, this rationale was deemed inadequate because "is not clear if the examiner tried to solicit details from Appellant about his functional loss prior to stating that no estimated ROM could be made." Second, the parties' joint motion stated that the July 2007, February 2013, and March 2015 VA examinations failed to comply with the Court's holding in Sharp that estimated ranges of motion should be provided during flare-ups, if feasible, even if the Veteran is not experiencing one during the examination. Sharp v. Shulkin, 29 Vet. App. 26 (2017). As the July 2007, February 2013, March 2015, and September 2018 VA examinations are inadequate, remand is necessary to obtain an adequate medical examination and opinion regarding the Veteran's service-connected right knee. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to March 4, 2008 is remanded. 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. Because a decision on the other issues remanded here could significantly impact a decision on the issue of TDIU, the issues are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991). Remand of the inextricably intertwined TDIU claim is therefore required as well. The matters are REMANDED for the following action: Schedule the Veteran for an examination with an appropriate examiner to address the prior and current severity of his service-connected right knee disability. Range of motion measurements must be included for the thoracolumbar spine in both active and passive motion and in weight-bearing and non-weight-bearing circumstances. If pain is noted, the point in the range of motion at which pain starts should be clearly noted. The examiner must also assess any additional symptomatology and functional impairment caused by repeated use or during flare-ups in terms of the degree of additional range of motion loss. If the Veteran is not having a flare-up at the time of the examination, the examiner must still provide an estimated assessment, using lay observations elicited from the Veteran. The examiner must provide Sharp and Correia estimates for the periods both from July 31, 2007 to January 31, 2016, and from April 1, 2017. Specifically, the examiner is asked to provide a retrospective opinion, as best as can be ascertained from the Veteran's self-reports as well as from clinical records and other evidence, estimating both active and passive motion on both weight-bearing and non-weight-bearing, and must estimate any additional degrees of limited motion caused by functional loss during a flare-up and/or after repeated use over time for both periods from July 31, 2007 to January 31, 2016, and from April 1, 2017. If it is not possible to provide specific measurements based the evidence of record, the examiner must provide an estimate, if at all possible, of the range of motion on both active and passive motion on both weight-bearing and non-weight-bearing, and of any additional impairment due to flare-ups and with repeated use over time based on the other evidence of record and the Veteran's statements. The examiner must discuss the effect of the Veteran's right knee disability on any occupational functioning and activities of daily living throughout the period on appeal. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups of the Veteran's right knee disability, and the degree of functional loss during flare-ups for both periods from July 31, 2007 to January 31, 2016, and from April 1, 2017. If the examiner finds that it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment of the impacted joint for either time period in question without resorting to 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 in order to respond), or the examiner (he or she does not have the requisite knowledge or training). In rendering this opinion, the examiner may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up or following repeated use over time. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Finelli, 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.