Citation Nr: 22017503 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 09-07 519 DATE: March 25, 2022 REMANDED Entitlement to service connection for a right knee disorder is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to August 26, 2010, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1981 to August 1982. 1. Entitlement to service connection for a right knee disorder is remanded. The Veteran seeks service connection for his right knee disability, claiming that it is related to a motorcycle accident during service. The record discloses that the Veteran was in an accident in August 1982. At that time, he reported dragging his heels attempting to stop the motorcycle. After the accident, a scrape was observed on his right heel. The Board remanded this claim in July 2021 for a new examination. Specific to that request, the Board noted that the Veteran was competent to report his symptoms and history. In response to the Board's remand, the Veteran was afforded a VA examination in December 2021. Despite findings from September 2010, May 2017, and September 2020 indicating the Veteran had a right knee disorder, the December 2021 VA examiner found that the Veteran did not have a right knee disorder and opined that it was less likely than not that the Veteran's right knee disorder was related to service. The examiner wrote that the "[c]laimed condition is less likely than not to be service connected. This incident he is claiming does not show any reports of knee pain and there [are] no signs or findings to render a diagnosis[;] flare up and decreased mobility and increased fatigability noted on DBQ is subjective evidence. Veteran stated as per records that no pain was reported with accident. I do not find any pathology or exam findings to render a diagnosis for this Veteran[']s right knee complaints. His lay statement about his foot dragging would be more consistent with heel and toe injury[,] not knee injury." In an addendum December 2021 opinion, the December 2021 VA examiner wrote that "Veterans' examination was not significant for profound or marked abnormality at the time of the exam, in regard to the knees. Veterans' evidence would be more unilateral in presentation and not bilateral presentation in the knees. Consistent with an obese person and normal aging process in the knees. His exam on 09/01/2010 and 05/10/17 is one upon this provider's review to be consistent with a chronic degenerative process like osteoarthritis. His symptoms of knee issues may be present but to state that they are wholly and directed related to [an] un-documented and subjective injury report are pure speculation at this point from this provider. I would not be able to definitively state his lay statements accurately depict his knee issues he experience[s] are related to [an] accident in service." The Board finds that the examination and medical opinions are inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Board notes that as to whether the Veteran has a currently diagnosed right knee disorder, the examination and medical opinions are internally inconsistent. On examination and in the December 2021 opinion, the examiner indicated that the Veteran did not have a right knee disorder; however, in the addendum opinion, the examiner indicated that the Veteran's right knee symptoms are "consistent with a chronic degenerative process like osteoarthritis." Thus, it is unclear whether the Veteran has a right knee disorder. Furthermore, the examiner seems to have inconsistently accepted and rejected the Veteran's reports of symptoms and history. The examiner mentions in the first opinion that the "decreased mobility and increased fatigability noted on DBQ is subjective evidence," but in the addendum opinion wrote that "his symptoms of knee issues may be present." For these reasons, the Board concludes that the examination and medical opinions are inadequate. As such, a new examination and medical opinion is necessary. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to August 26, 2010, is remanded. Because a decision on the remanded issue of entitlement to service connection for a right knee disorder could impact a decision on the issue of TDIU, the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991). A remand of the claim for an earlier effective date for TDIU is required. In addition, in September 2020, the Board requested that the Veteran complete VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. Although VA requested the Veteran complete the form in a September 2020 letter, to date, no response has been received. On remand, VA should again request that the Veteran complete and return VA Form 21-8940. The Board notes, however, that the duty to assist is not a one-way street and the Veteran cannot sit idly by when his participation is necessary for the development of evidence in his case. See Wood v. Derwinski, 1 Vet. App. 190. 192 (1991) (noting the duty to assist is a two-way street that requires a claimant's active participation in a claim for VA benefits). The matters are REMANDED for the following actions: 1. Request the Veteran complete and return VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to provide a complete employment and educational history. 2. Schedule the Veteran for a VA examination for his claimed right knee disorder with an examiner other than the December 2021 VA examiner. The examiner must review the claims file. The examiner should identify all right knee disorders. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. For each diagnosed right knee disorder, is it at least as likely as not that the disability (1) began during active service, to include related the Veteran's August 1982 motor vehicle accident, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements. Although a complete review of the claims file is required, the examiner is asked to specifically consider the service treatment record notation indicating the Veteran's report that he dragged his heels to stop the motorcycle's forward motion during the August 1982 accident, and his later statement that this action caused ongoing right knee pain. The examiner is also directed to consider the Veteran's July 2007 and November 2007 lay statements, as well as statements made at the September 2010, September 2011, and May 2017 VA examinations. A complete rationale for any opinion expressed should be provided in a report. 3. After completing the above, and any other development as may be indicated, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. Stephanie M. Owen Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jonah Nelson, 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.