Citation Nr: 22012266 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 14-06 204 DATE: March 3, 2022 REMANDED Entitlement to an initial rating in excess of 10 percent for osteoarthritis of the right knee, except for periods of temporary total rating, is remanded. Entitlement to temporary total ratings under the provisions of 38 C.F.R. § 4.30 for a service-connected right knee disability based on convalescence following a June 2021 surgical procedure 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 on active duty from December 1980 to June 1989. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision issued by Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2015, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. In June 2021, the Board remanded this case for additional development. The Board finds that there has not been substantial compliance with the remand requests. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to an initial rating in excess of 10 percent for osteoarthritis of the right knee, except for periods of temporary total rating is remanded. 2. Entitlement to temporary total ratings under the provisions of 38 C.F.R. § 4.30 for a service-connected right knee disability based on convalescence following a June 2021 surgical procedure is remanded. In a June 2021 Board remand, the Board noted that the Veteran's right knee disability was assigned a 10 percent rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5003-5261. The Board explained that pursuant to 38 C.F.R. § 4.71, separate ratings may be necessary for the right knee disability beyond limitation of motion. However, a medical opinion addressing additional compensable symptomatology was necessary in order to determine whether any separate rating was warranted. The Board asked the VA examiner to: (1) state the severity of any recurrent subluxation or lateral instability during the periods in question based on evidence of record and statements from the Veteran; (2) clearly elicit from the Veteran the extent of reported knee instability and the functional impairment associated with said instability; and (3) clearly identify any and all assistive devices used by the Veteran throughout the appeal and ascertain from the Veteran whether any assistive devices were prescribed by a treating clinician. The September 2021 VA examiner noted that the Veteran reported "right knee pain, swelling, stiffness, giving way, using a knee brace and cane (OTC)." However, the examiner noted that there was no right knee instability, and the examiner did not indicate whether the Veteran required a prescription for assistive devices used. The Board finds the opinion incomplete as the examiner did not comply with the June 2021 Board remand requests. Remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand. Stegall v. West, 11 Vet. App. 268 (1998). Further, the examiner did not consider and discuss the evidence of record regarding knee instability. Specifically, during the May 2015 Board hearing, the Veteran reported that the right knee was unstable. Mild lateral subluxation was noted in an October 2020 diagnostic imaging report. Mild instability was noted in October 2020 and in April 2021 medical reports. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, remand for a VA examination is necessary. In July 2021, the Veteran submitted medical records which showed a June 2021 right knee surgery. The Veteran reported treatment for right knee pain following the June 2021 surgery. However, all relevant medical records have not been associated with the claims file. On remand, the AOJ should obtain all outstanding VA and non-VA medical records. A VA examiner noted the June 2021 right knee surgery in the September 2021 report. However, the September 2021 supplemental statement of the case did not address the issue of entitlement to a temporary total rating for convalescence following the June 2021 surgery. Therefore, on remand, the AOJ should adjudicate the issue of a temporary total rating in the first instance. Harris v. Derwinski, 1 Vet. App. 180 (1991). 3. Entitlement to a TDIU due to service-connected disabilities is remanded. In an October 2021 statement, the Veteran stated that he was unable to work. The Board finds that a claim for a TDIU has been reasonably raised by the record as part of the appeal for an increased rating for a right knee disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). On remand, the TDIU claim should be developed, to include providing appropriate notice requirements, requesting completion of VA Form 21-8940, and associating any outstanding medical records with the claims file. The matters are REMANDED for the following action: 1. Perform any additional development necessary for the claim for a TDIU, to include (1) obtaining from the Veteran a detailed statement regarding his educational attainment, post-service work history, and additional training using VA Form 21-8940, and (2) sending the Veteran and representative a notice letter indicating what is needed to substantiate a claim of entitlement to TDIU. 2. After obtaining any necessary releases, obtain all relevant VA and private medical records not already associated with the claims file. All attempts to locate records must be documented in the claims file. 3. Schedule the Veteran for a VA joints examination to determine the current nature and severity of a service-connected right knee disability. The examiner must review the claims file and should note that review in the report. All appropriate tests and studies must be accomplished, and all clinical findings must be reported in detail. The medical and lay evidence of record should be taken into account and a rationale must be provided for any opinion expressed, to include reference to pertinent evidence where appropriate. For both knees, the examiner should specifically state ranges of motion for active and passive motion and on weight bearing and non-weight bearing. The examiner should comment on whether there is any additional loss of function due to weakened movement, excess motion, incoordination, fatigability, pain on use, or on flare up for the right knee. The examiner should describe any claimed flare ups, to include the frequency and severity, and opine as to any additional functional loss on flare up. The examiner should describe the severity of any recurrent subluxation or lateral instability of the right knee and should specifically state whether or not recurrent subluxation or lateral instability is shown for the right knee. The examiner should consider the Veteran's account of instability of the right knee. The examiner should identify whether the Veteran has had a complete or incomplete ligament tear of the right knee causing persistent instability. The examiner should identify whether the Veteran has been medically prescribed an assistive device or bracing for ambulation due to the right knee disability, or whether prescription of such a device is needed. The examiner should indicate if replacement of the right knee is medically indicated. The examiner should state whether or not there is any meniscal tear or removal and any symptoms resulting from meniscal pathology. 4. Then, readjudicate the claims on appeal, to include consideration of whether a temporary total rating following a June 2021 knee surgery is warranted, and consideration of entitlement to TDIU. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.O., 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.