Citation Nr: 22017976 Decision Date: 03/27/22 Archive Date: 03/27/22 DOCKET NO. 12-14 374 DATE: March 27, 2022 REMANDED An initial disability rating in excess of 10 percent for limited flexion of the right knee is remanded. An initial disability rating in excess of 10 percent for limited extension of the right knee is remanded. A total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1979 to August 1985 in the United States Army. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office. In April 2018, the Veteran testified before the undersigned during a hearing at the VA Regional Office. A transcript of the hearing is included in the electronic claims file. In July 2018, the Board remanded the appeal for further development. In October 2020, the Board, in adjudicating a claim for a higher rating for the Veteran's right knee disability based on instability and subluxation, awarded the Veteran separate disability ratings for limited flexion and limited extension of the right knee. The Board additionally denied a TDIU. The Veteran appealed the Board's decision on these claims to the United States Court of Appeals for Veterans Claims (Court). In June 2021, the Court vacated the October 2020 Board's denial of a TDIU and decision on the claims involving limited flexion and extension of the right knee to the extent that ratings in excess of 10 percent were not awarded, and remanded the matters to the Board for development consistent with the parties' Joint Motion for Partial Remand (Joint Motion). 1. An initial disability rating in excess of 10 percent for limited flexion of the right knee is remanded. 2. An initial disability rating in excess of 10 percent for limited extension of the right knee is remanded. In the June 2021 Joint Motion, the parties vacated the Board's October 2020 decision on the claims involving limited flexion and extension of the right knee due to its reliance on an August 2019 VA examination report, which does not comply with the requirements of Correia v. McDonald, 28 Vet. App. 158, 170 (2016). The parties noted that prior VA examinations of October 2009, July 2010, and August 2013 are similarly inadequate. Accordingly, the Board will remand the claims in order to provide the Veteran with a compliant VA examination. 3. A TDIU is remanded. In developing the claims for higher ratings for the right knee disabilities, any ratings assigned, effective dates awarded, or statements made on VA examination as to the Veteran's employability may impact adjudication of the claim for a TDIU. As such, the issues are inextricably intertwined and a remand of the claim for a TDIU is also required. The matters are REMANDED for the following action: Afford the Veteran a VA examination to ascertain the current severity of his service-connected right knee disabilities based on limited flexion and limited extension, in accordance with the applicable worksheet for rating the disabilities. (a.) The examiner must test the ranges of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. The examiner is asked to include at what degree pain begins in each type of motion (active and passive) and in both weight-bearing and nonweight-bearing status. To the extent possible, the examiner must provide both current findings as well as retrospective findings (dating back to the filing of the January 2010 claim) in this regard. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so. (b.) As for functional loss after repeated use or during flare-ups, if the Veteran endorses experiencing functional loss due to either event, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups or after repeated use. If the examination is not being conducted during a flare-up or after repeated use over time, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.