Citation Nr: 22012114 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 19-12 862 DATE: March 2, 2022 REMANDED Entitlement to an increased rating in excess of 10 percent for left knee disability, to include degenerative joint disease, status post anterior cruciate ligament tear, is remanded. Entitlement to an increased rating in excess of 10 percent for right knee disability, to include degenerative joint disease, status post anterior cruciate ligament tear, is remanded. Entitlement to an increased rating in excess of 10 percent for lower spine disability, to include degenerative joint disease with degenerative disc, is remanded. Entitlement to an increased rating in excess of 10 percent for left lower extremity radiculopathy, secondary to lower spine disability, is remanded. Entitlement to a finding of total disability based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1997 to March 2002. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2017 rating decision by an agency of original jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA). Additionally, a claim for TDIU is inferred as part and parcel of the claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran testified at a July 2021 videoconference hearing held before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. The Board notes that at the hearing the Veteran identified recent private treatment, and has submitted copies of such for consideration. In July 2018, the Veteran was afforded VA examinations for his lower back and knee disabilities. The examinations do not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The Veteran and his representative assert that although the VA examiner noted the Veteran experienced flare-ups of knee symptoms and loss of functionality with repeated use over time, the examiner did not offer an opinion as to the functional limitations and or additional loss of range of motion the Veteran experienced during such flare-ups or with repeated use over time. The examiner also failed to review or perform any diagnostic imaging. Additionally, the Veteran testified that his symptoms of pain in his knees and back have worsened. Specifically, the Veteran testified that his left knee occasionally buckles and that his right knee brace helps prevent his right knee from buckling. The Veteran reported that during flare-ups of back pain, he is unable to move and is confined to his couch. The Veteran was last afforded a VA examination in November 2018. Private physical therapy records from June 2021 through August 2021 indicate that the Veteran received treatment due to pain in his knees, specifically instability in his left knee, since that time. The Veteran also reported ongoing back pain. In light of the time that has passed since his last VA examination and reports of the Veteran's worsening state, the Board finds that new VA examinations are also needed to assess the current severity of the Veteran's bilateral knee disabilities and lower back disability, including lower left extremity radiculopathy, in order for the Board to make a fully informed decision. Updated private and VA treatment records should be requested on remand. 38 U.S.C. § 5103A(c). The Board further defers decision on the TDIU claim as intertwined with the remanded increased ratings claims. The matters are REMANDED for the following action: 1. Contact the Veteran and request properly executed releases for any private care providers who have treated him for his back and knee disabilities. Specifically, updated treatment records from the providers the Veteran identified during his July 2021 hearing, and submitted records for through July 2021, must be requested. Upon receipt of such, VA must take appropriate action to contact the identified providers and request complete treatment records. The Veteran should be informed that in the alternative he may obtain and submit the records himself. 2. Schedule the Veteran for VA knee examination. The claims file must be reviewed in conjunction with the examination. The examiner must describe the current status of the service-connected left and right knee disabilities in detail. Limitations of motion in all planes, the presence or absence of meniscal injuries, and stability of the joints must be addressed. The examiner must opine as to the functional limitation and or additional loss of range of motion the Veteran experiences during flare-ups or with repeated use over time. A full and complete rationale for all opinions expressed is required. Schedule the Veteran for VA back examination. The claims file must be reviewed in conjunction with the examination. The examiner must describe the current status of the service-connected low back disability in detail, to include assessment of radiculopathy of the left and right lower extremities. The examiner must opine as to the functional limitation and or additional loss of range of motion the Veteran experienced during flare-ups or with repeated use over time. A full and complete rationale for all opinions expressed is required. 3. Then, readjudicate the remanded issues. If any benefit sought remains denied, issue a supplemental statement of the case. After appropriate time for a response, the case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lauren Barletta 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.