Citation Nr: 22016495 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 18-47 208 DATE: March 22, 2022 REMANDED Entitlement to a disability rating in excess of 10 percent for left knee degenerative arthritis is remanded. Entitlement to a disability rating in excess of 10 percent for symptomatic residuals of left knee meniscectomy is remanded. Entitlement to a compensable rating for left knee limitation of extension is remanded. Entitlement to a disability rating in excess of 20 percent for left upper extremity radiculopathy prior to September 27, 2017, and in excess of 30 percent thereafter, 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 August 1989 until August 1993, February 2005 to November 2005, and January 2009 to November 2009. These matters are on appeal to the Board of Veterans' Appeals (Board) from an October 2015 Department of Veterans Affairs (VA) regional office (RO) rating decision. The Veteran testified before the undersigned in November 2021; a transcript is associated with the claims file. Preliminarily, a review of the evidence reflects that the issue of a TDIU has been raised by the record. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is reasonably raised by the record. In light of evidence associated with the Veteran's claims file during the appeal period, to include the November 2021 testimony that he stopped working due to "pain," the Board finds that the issue of entitlement to a TDIU is reasonably raised by the record and considered to be part of the Veteran's appeal, as is reflected on the title page of this decision. Entitlement to a disability rating in excess of 10 percent for left knee degenerative arthritis is remanded. Entitlement to a disability rating in excess of 10 percent for symptomatic residuals of left knee meniscectomy is remanded. Entitlement to a compensable rating for left knee limitation of extension is remanded. The Veteran obtained VA examinations in May 2014, August 2016, and September 2017 for his left knee disability. Therein, the Veteran reported that he experienced flare-ups in his left knee. However, the VA examiner did not estimate the loss of function during said flare-ups in violation of Sharp v. Shulkin, 29 Vet. App. 26 (2017) (holding that where an examination is not conducted during a flare-up, the VA examiner should still estimate the Veteran's additional functional impairment, in terms of additional range of motion loss, based on the Veteran's descriptions of his additional loss of function during flare-ups and information gleaned from his medical records). Furthermore, the Board notes that the evidence submitted after the September 2017 VA examination, especially the November 2021 hearing testimony, indicates that the Veteran's left knee disability has worsened to the point where he underwent a total knee replacement in February 2021 (requiring the use of pain medication, physical therapy, wearing a knee brace, using a cane, and starting a "walking routine" to build up strength), now requires someone to help him ambulate at home, and that his flare-ups are "consistent." The Board thus finds that the Veteran should be afforded a new VA examination in order to determine the current nature and severity of these service-connected disabilities. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The Board also notes that the regulations pertaining to musculoskeletal disabilities were amended during the course of this appeal, effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). The Secretary of VA has determined that "claims pending prior to [February 7, 2021] will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied." Therefore, the Board must evaluate the Veteran's knee disability under the earlier diagnostic codes and the current diagnostic codes, as of their effective dates, in order to determine which version would afford the highest rating. To assist the Board in this task, the examiner should address the Veteran's symptoms under both the earlier and current diagnostic codes. Entitlement to a disability rating in excess of 20 percent for left upper extremity radiculopathy prior to September 27, 2017, and a rating in excess of 30 percent thereafter, is remanded. While never participating in a VA examination exclusively for his left upper extremity radiculopathy, the Veteran did participate in VA examinations for his cervical spine in August 2014, August 2016, and September 2017. However, at the November 2021 hearing, the Veteran testified that his left upper extremity radiculopathy has worsened to the point where his fingers will go numb and that he needs to sleep on his back to reduce the pain. Accordingly, the Board finds that the Veteran should be afforded a new VA examination in order to determine the current nature and severity of this disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Entitlement to TDIU Two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered. Because a decision on the other issues remanded here could significantly impact a decision on the issue of TDIU, the issues are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991). Remand of the inextricably intertwined TDIU claim is therefore required as well. The matters are REMANDED for the following action: 1. Ask the Veteran to complete an updated VA Form 21-8940 (Application for Increased Compensation Based on Unemployability). The Veteran is asked to clarify when he last worked. 2. Schedule the Veteran for an examination with an appropriate examiner to address the prior and current severity of his service-connected left knee disability. The complete claims file must be reviewed by the examiner in connection with the examination. All indicated tests and studies should be accomplished and all findings should be reported in detail. The examiner must conduct range of motion testing (expressed in degrees) of the knee on both active motion and passive motion and in both weight bearing and non-weight bearing. If the examiner is unable to conduct the required testing on any identified joint or concludes that the required testing is not necessary in this case, he or she must clearly so state, and explain why. The examiner must render specific findings as to whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination of the knee. If pain on motion in any identified joint is observed, the examiner should indicate the point at which pain begins. Also, the examiner must describe the frequency, duration, characteristics, severity, and functional loss during flare-ups of the knee disability and/or with repeated use over a period of time. If the examination is not conducted during a flare-up, the examiner must indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner must express any such additional functional loss in terms of additional degrees of limited motion. If the examiner is unable to provide any of the required findings as discussed above, he or she must clearly so state, and explain why that is so. 3. Schedule the Veteran for an examination with an appropriate examiner to address the prior and current severity of his service-connected left upper extremity radiculopathy disability. The complete claims file must be reviewed by the examiner in connection with the examination. All indicated tests and studies should be accomplished and all findings should be reported in detail. The examiner must identify any nerve involved, and address the severity of the Veteran's service connected left upper extremity radiculopathy. For any affected nerve, the examiner should indicate whether there is complete or incomplete paralysis. For any incomplete paralysis, the examiner should characterize the severity of that paralysis in terms of mild, moderate, moderately severe, or severe. The examiner should indicate whether there is muscular atrophy and, if so, the extent of such atrophy. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Finelli, 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.