Citation Nr: 22012256 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 16-53 619 DATE: March 3, 2022 REMANDED Entitlement to a rating in excess of 40 percent for service-connected residuals of right knee injury with torn medial meniscus, status post right knee arthroscopy and partial medial meniscectomy with degenerative joint disease and chondromalacia ("right knee disability") is remanded. Entitlement to a rating in excess of 20 percent for service-connected residuals of a right ankle fracture ("right ankle disability") is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Army from December 1980 to April 1983. These issues come before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Veteran testified before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. The Board notes that the VLJ who conducted this hearing is no longer employed at the Board. VLJs who conduct hearings must participate in making the final determination of the claim on appeal. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. In a March 2021 letter, the Board notified the Veteran that the VLJ was no longer employed by the Board and informed him of the right to another hearing. This letter also informed that if the Veteran did not respond within 30 days, the Board would assume that another hearing was not desired and would proceed to adjudicate the claim on appeal. In April 2021, the Veteran indicated that he did not wish to appear for another Board hearing. These issues were previously before the Board in December 2019 and July 2021, where they were remanded for additional development. The Board notes that there was not substantial compliance with its July 2021 remand directives as it pertains to the increased rating claims for the Veteran's right knee and right ankle disabilities. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). 1. Entitlement to a rating in excess of 40 percent for right knee disability is remanded. 2. Entitlement to a rating in excess of 20 percent for right ankle disability is remanded. As noted above, the Veteran's claims were remanded in July 2021 for further development, specifically requesting that the Veteran be provided new VA examinations that complied with the requirements in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). In November 2021, the Veteran underwent VA examinations for his right knee and right ankle disabilities. While both examinations reflect the examiner properly complied with the requirements set forth in Correia, the examiner failed to provide the sufficient information regarding the Veteran's reports of experiencing flare-ups, pursuant to Sharp. Sharp requires, and the Board in July 2021 directed that, when a Veteran complains of flare-ups, the examiner must "state their severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, per the Veteran, to what extent, if any, they affect functional impairment." 29 Vet. App. at 10-11. If feasible, functional loss due to flare-ups should be expressed in terms of the degree of additional range-of-motion loss. If the examiner cannot express functional loss in this manner without resorting to speculation, he/she must explain the basis for his or her conclusion that a non-speculative opinion cannot be offered. Furthermore, in situations where an examination is not conducted during a flare-up, a VA examiner should estimate functional loss based on the Veteran's descriptions of his/her additional loss of function during flare-ups, gleaned from his/her medical records, or discerned from other sources available to the examiner. Id. at 35-36. Within the examination reports, the Veteran reported experiencing flare-ups of the right knee and right ankle, however, these examinations were not conducted during a flare-up and the examiner failed to ascertain the required information as to the functional loss in terms of range of motion regarding the Veteran's flare-ups by alternative means, nor did the examiner provide an adequate rationale as to why this information cannot be ascertained beyond mere speculation and/or by additional means. Therefore, based on the above, the Board finds that addendum medical opinions are necessary to gather such information to adequately understand the Veteran's additional and/or increased right knee and right ankle symptoms and limitations in November 2021, pursuant to Sharp, and under 38 C.F.R. § 3.159(c)(4). While on remand, the RO should obtain all updated medical records pertinent to the claims. 1. Entitlement to a TDIU due to service-connected disabilities is remanded. The Board notes that as development of the Veteran's disability claims before the Board may have an impact on the Veteran's TDIU claim, the Board finds these issues to be inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the Board will defer adjudication of the inextricably intertwined TDIU claim at this time. The matters are REMANDED for the following action: 1. Request the Veteran to identify all medical providers (VA and private) from whom he has received treatment for his right knee and right ankle disabilities and obtain any outstanding records and associate them with the Veteran's claims file. 2. After associating all newly acquired records with the claims file, send the claims file back to the November 2021 VA examiner to provide addendum medical opinions regarding the current severity of the Veteran's right knee and right ankle disabilities during November 2021. If the November 2021 VA examiner is not available, forward the claims file to another appropriate clinician. The entire claims file, including a copy of this remand, must be made available to the examiner, and note review of the record in the examination report. Any indicated tests or studies should be performed, and all relevant evidence should be discussed. All pertinent medical complaints, symptoms, and clinical findings must be reported in detail. Following complete review of the record, the examiner must address the following: (a) Identify any symptoms and functional impairments due to the Veteran's right knee and right ankle, and report or estimate functional loss in terms of the degree of additional loss of range of motion during November 2021. If the examiner cannot express functional loss in this manner without resorting to speculation, he/she must explain the basis for his/her conclusion that a non-speculative opinion cannot be offered. The examiner must provide a complete rationale for any opinion given. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Carter, 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.