Citation Nr: 22014541 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 17-38 246 DATE: March 14, 2022 REMANDED Entitlement to a rating in excess of 10 percent for a right knee disorder is remanded. Entitlement to a rating in excess of 10 percent for a left knee disorder is remanded. Entitlement to a compensable rating for a right knee post operative scar is remanded. Entitlement to a compensable rating for a left knee post operative scar is remanded. Entitlement to a rating in excess of 70 percent for an acquired psychiatric disorder is remanded. Entitlement to a total rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Air Force from February 1989 to February 1999 and from March 2011 to December 2011. The Veteran also had over 11 years of addition service with a Reserve Component. In June 2019 the Board of Veterans' Appeal (Board), among other things, remanded the above claims. Next, the Board finds that the record raises a claim for a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to increased ratings right and left knee disorders as well as right and left knee post operative scars and an acquired psychiatric disorder are remanded. As to all the above rating claims, the Board in January 2022 wrote the Veteran and asked if he would be willing to waiver agency of original jurisdiction (AOJ) review of the additional evidence added to the claims file since it issued the September 2020 supplemental statement of the case (SSOC). In February 2022 the Veteran notified the Board that he wanted his appeal remanded for AOJ review of this evidence. Therefore, the Board finds that a remand for such review is required. See 38 C.F.R. § 19.31 (a SSOC will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued). As to the bilateral knee disabilities, the Board also finds that when providing the Veteran with the SSOC, it should also include notice of the new musculoskeletal rating criteria and adjudicates the claims applying these criteria from there effective date of February 7, 2012. See 38 C.F.R. § 19.31 (a SSOC will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued); 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). As to all the above rating claims, given the medical records that were added to the claims file since the last VA examinations in 2018 and 2019, the Board finds that while the appeal is at the AOJ the Veteran should be provided with new examinations to ascertain the current severity of his disabilities. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 84-86 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991) (holding that VA's duty to assist includes conducting a thorough and contemporaneous examination of the veteran that takes into account the records of prior examinations and treatment). As to the bilateral knee disabilities, when providing the examination and again adjudicating the claims the examiner and AOJ should be mindful of the United States Court of Appeals for Veterans Claims (Court) holdings in Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016) (i.e., range of motion estimates in both active and passive motion, in weight-bearing and non-weight-bearing) and Sharp v. Shulkin, 29 Vet. App. 26 (2017) (i.e., range of motion estimates during a period of flare-up). Also as the bilateral knee disabilities, the RO when again adjudicating the claims should be mindful of the fact that controlling laws and regulations allow separate knee rating knee arthritis and instability as well as for lost knee flexion and extension. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994); VAOPGCPREC 9-2004; VAOPGCPREC 23-97 (July 1, 1997). While the appeal is in Remand status, any outstanding VA and private treatment records should also be obtained and associate with the record. See 38 U.S.C. § 5103A(b). Entitlement to a TDIU is remanded. As to the TDIU claim, as noted above, the issue is raised by the record. See Rice, supra. However, because the TDIU claim is inextricably intertwined with the above rating claims the Board finds that this issue must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). Additionally, the Board notes that from the existing record it cannot address the questions of whether the Veteran's service-connected disabilities prevent him from being able to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16, Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the regional office). Therefore, the Board finds that a Remand is also required to obtain from the Veteran a Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability (TDIU Claims Form). The appeal is REMANDED for the following actions: 1. After obtaining all needed authorizations from the Veteran, associate with the claims file all outstanding private treatment records. If possible, the Veteran or his representative should submit and new pertinent evidence the Board/VA does not have (if any). Any help with the above would be appreciated. 2. Obtain and associate with the claims file any outstanding VA treatment records (if any). 3. Obtain and associate with the claims file a fully executed TDIU Claim Form. The request should notify the Veteran that the claim for a TDIU can be denied if he fails to cooperate with the prosecution of the claim by providing the TDIU Claim Form because the claim can be considered abandoned. See 38 C.F.R. § 3.158(a). The request should also include a request for the Veteran to provide a detailed statement as to his employment history since service along with his duties at those places of employment, if he is working in a protected environment and/or whether he earns more than the poverty level, whether he continues to be employed, the approximate date he stopped working full and part time, and how his service-connected disabilities prevent him from obtaining and maintaining substantial gainful employment in both fields that are sedentary and physically demanding. Any help from the Veteran and/or his representative in obtaining this information would be appreciated. The form cited above is available on-line. 4. Schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the severity of his left and right knee disabilities. The claims folder should be made available to and reviewed by the examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to address the following: (a) The examiner should identify all left and right knee pathology found to be present. (b) The examiner should conduct all indicated tests and studies, to include range of motion studies. (c) In order to comply with Correia, supra, the left and right knee should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and range of motion estimates should be provided. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. (d) In order to comply with Sharp, supra, the examination should identify the left and right knee's range of motion during a period of flare-up. If the examination is taking place during a flare-up, the examiner should provide range of motion estimates in both active and passive motion, in weight-bearing and non-weight-bearing during the flare-up. If the examination is NOT taking place during a flare-up, the examiner should ask the Veteran to describe the flare-ups he experiences, including the following: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of left and right knee flexion and extension caused by functional loss during a flare-up and after repeated use over time. (e) Based on the Veteran's range of motion studies, the examiner should also provide an opinion as to whether the Veteran's lost motion equates to ankylosis in the left and/or right knee. (f) The examiner should also state the nature, extent, and severity of any left and/or right knee instability or subluxation. If the examiner cannot provide any the above range of motion estimates without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). If the examiner cannot provide any of the range of motion estimate without resorting to speculation because of a deficiency in the record or the examiner, all appropriate steps should be taken to correct the deficiency. In providing the opinions the examiner should consider the Veteran's competent lay claims regarding observable symptomatology. The examination report must include a complete rationale for all opinions expressed. 5. Schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the severity of his left and right knee post operative scars. The claims folder should be made available to and reviewed by the examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner should identify all left and right knee post operative scar pathology found to be present. In providing the opinions the examiner should consider the Veteran's competent lay claims regarding observable symptomatology. The examination report must include a complete rationale for all opinions expressed. 6. Schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the severity of his acquired psychiatric disorder. The claims folder should be made available to and reviewed by the examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner should identify all psychiatric pathology found to be present. In providing the opinions the examiner should consider the Veteran's competent lay claims regarding observable symptomatology. The examination report must include a complete rationale for all opinions expressed. 7. After undertaking any other needed development, issue the Veteran and his representative a SSOC that, among other things, adjudicates all of the above issues considering all evidence added to the claims file since the issuance of the most recent SSOCs as to each of the issues on appeal as well as provides the appellant with notice of the new musculoskeletal Diagnostic Codes for rating the knees and considers whether the criteria for separate ratings for lost knee flexion and extension and/or knee arthritis and instability have been met. See Esteban, supra; 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021); VAOPGCPREC 9-2004; VAOPGCPREC 23-97. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.