Citation Nr: 22010518
Decision Date: 02/23/22	Archive Date: 02/23/22

DOCKET NO. 15-13 878
DATE: February 23, 2022

REMANDED

Entitlement to a rating in excess of 10 percent for left knee disability, limitation of flexion, is remanded.

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded.

REASONS FOR REMAND

The Veteran served active duty in the United States Marine Corps from March 1986 to January 1989.

In August 2018, April 2020 and February 2021, the Board remanded the appeal for further development.

1. A rating in excess of 10 percent for left knee disability, limitation of flexion, is remanded.

The Veteran contends that his left knee disability is such that a rating in excess of 10 percent is warranted.

In the February 2021 Board remand, the Board directed, in part, that information be obtained to demonstrate that K.D., Dr. D.D.H., and any other VA examiner who provides an opinion based upon the directives regarding the Veteran's left knee are qualified to offer the requested opinion (such as a curriculum vitae or similar demonstrable documentation (which may be redacted as deemed warranted), and that such files be associated with the Veteran's record.  In a May 2021 VA opinion, Dr. L C., a different VA examiner, properly provided an explanation regarding a retrospective opinion on range of motion measurements for painful motion.  However, while a July 2021 email record and September 2021 follow-up correspondence indicate request for information regarding the qualifications of examiners offering opinion on the Veteran's left knee severity, receipt of the requested information is not of record.  Moreover, there is no indication of unavailability of such information.  The Veteran has a right, as a matter of law, to compliance with remand instructions, and the Board has a duty to ensure compliance with the terms of the remand.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  As such, the Board finds that remand is warranted to obtain the requested information regarding the examiner's qualifications.  

2. A TDIU is remanded.

Because a decision on the rating of the Veteran's left knee disability could significantly impact a decision on entitlement to a TDIU, the issue is inextricably intertwined.  A remand of the claim for a TDIU is required.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined).

The matters are REMANDED for the following action:

1. Obtain information to demonstrate that K.D., Dr. D.D.H., and Dr. L.C. (and any other VA examiner who provides an opinion based upon the directives contained herein) are qualified to offer the requested opinions regarding the severity of the Veteran's left knee disability (such as a curriculum vitae or similar demonstrable documentation (which may be redacted as deemed warranted)).  This information is to be associated with the Veteran's claims file.  If this information cannot be obtained, a memorandum should be added to the file with explanation regarding unavailability of these records and steps exhausted in pursuit of the requested information.

 

 

JENNIFER HWA

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Ford

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.