Citation Nr: 22045321 Decision Date: 08/10/22 Archive Date: 08/10/22 DOCKET NO. 17-20 447 DATE: August 10, 2022 REMANDED Entitlement to an initial increased rating in excess of 10 percent for service-connected right knee degenerative arthritis (hereinafter "right knee disability") is remanded. Entitlement to an initial increased rating in excess of 10 percent for a service-connected left knee strain (hereinafter "left knee disability") is remanded. Entitlement to an initial compensable rating for service-connected status post right fifth finger fracture (hereinafter "right fifth finger disability") is remanded. Entitlement to a total disability rating based on individual unemployability (hereinafter "TDIU") is remanded. REASONS FOR REMAND The Veteran served on active duty from May 2004 to September 2004 and from February 2009 to March 2010. This matter originally came before the Board of Veterans' Appeals (Board) from March 2016 and October 2016 rating decisions issued by Department of Veterans Affairs (VA) Regional Offices (ROs). The Veteran testified at a March 2020 Board hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is associated with the claims file. This matter was previously remanded by the Board for further development in August 2021. This matter is again before the Board. 1. Entitlement to an initial increased rating in excess of 10 percent for a right knee disability, entitlement to an initial increased rating in excess of 10 percent for a left knee disability, and entitlement to an initial compensable rating for a right fifth finger disability are remanded. The Veteran believes that higher ratings for the above disabilities are warranted. VA examinations for the knees and hand took place in 2016. See January 2016 C&P Exam; March 2016 C&P Exam; October 2016 C&P Exam. However, among other problems, none of these examinations: provided range of motion measurements for passive motion; stated whether there was pain in non-weight bearing; or provided information concerning the severity, frequency, or duration of any flare-ups. See Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). Newer examinations for the knees and hand were ordered and took place in 2020. See April 2020 VA Examination; July 2020 VA Examination. However, the Board previously found problems with them and remanded the issues for a new VA examination. See August 2021 Remand BVA. The most recent knee examination took place in 2022. See March 2022 C&P Exam. However, the examination did not consider the ameliorative effects of medication when evaluating the disabilities. See Jones v. Shinseki, 26 Vet. App. 56 (2012). Additionally, the examination found that the Veteran had never had a meniscus condition and did not have a history of knee instability. However, the examination did not consider/was unable to consider the 2020 knee examination, which found a meniscus condition with frequent episodes of joint pain and joint effusion, as well as knee instability. The examination also did not consider/was unable to consider the Veteran's potential report of right knee locking. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); July 2020 VA Examination; Hearing Transcript. The most recent hand examination took place in 2022. See March 2022 C&P Exam. However, among other problems, the examination did not consider the ameliorative effects of medication when evaluating the right fifth finger disability; did not report at what point in the Veteran's range of motion that pain began; and did not provide information concerning the severity, frequency, or duration of symptoms related to repetitive use over time. See Jones, 26 Vet. App. at 56; Correia, 28 Vet. App. at 158; Sharp, 29 Vet. App. at 26. Additionally, the examination did not consider/was unable to consider previous examinations which suggested that there was weakened movement and reduced hand grip muscle strength, possibly due to muscle and/or nerve injury. The examination also did not consider/was unable to consider the 2020 examination, which found arthritis. See Nieves-Rodriguez, 22 Vet. App. at 295; October 2016 C&P Exam; April 2020 VA Examination. For these reasons, among others, a remand is needed for a new VA examination. 2. Entitlement to a TDIU is remanded. The Board finds that the TDIU issue is inextricably intertwined with the issues being remanded herein and thus the Board will defer consideration of the TDIU issue for now. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Additionally, a remand will allow the Veteran another opportunity to provide information concerning employment history and to provide tax returns as previously requested. See November 2021 Subsequent Development Letter; December 2021 Subsequent Development Letter. The matter is REMANDED for the following action: 1. Update VA and private treatment records. VA treatment records appear current up to March 2022. 2. Provide the Veteran with another VA Form 21-8940 with instructions that the required information should be provided to assist with the adjudication of the TDIU issue. The Veteran should specifically be asked to provide information concerning all employment during the appeal period (i.e., from August 2015 to the present), regardless of whether it is/was part-time employment, on-call employment, self-employment, the employment does/did not result in any income, and/or the Veteran considers the employment to be marginal. For any employment that the Veteran considers to be marginal, the Veteran should provide an explanation for that belief. Complete any additional development indicated by the information on the returned form. 3. Ask the Veteran to provide IRS tax returns for the years during which, at any point, the Veteran believes that he has been unable to obtain and/or maintain substantially gainful employment due to service-connected disability during the appeal period (i.e., from August 2015 to the present), and a statement that the copy is an exact duplicate of the return filed with the IRS. Provide the Veteran with an IRS Form 4506-T "Request for Transcript of Tax Return" which may also be found at https://www.irs.gov/pub/irs-pdf/f4506t.pdf so that the Veteran may request tax returns and submit them to VA. Tell the Veteran that if he does not have copies of the tax returns for the requested years, he may use the IRS form cited to above. 4. Schedule one or more appropriate VA examinations to determine the nature and severity of the service-connected left knee and right knee disabilities since August 2015 and the service-connected right fifth finger disability since September 2016. This should include, but is not limited to, all muscle injuries and all neurological impairments. The claims file and a copy of this Remand should be made available to and should be reviewed by the examiner. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should report all signs and symptoms necessary for evaluating the Veteran's service-connected left knee and right knee disabilities since August 2015 and the Veteran's service-connected right fifth finger disability since September 2016. This should include, but is not limited to, any muscle injuries and any neurological impairments. The severity of any muscle injuries (i.e., slight, moderate, moderately severe, or severe) and the severity of any neurological impairments (i.e., mild, moderate, severe incomplete paralysis, or complete paralysis of the affected nerves) should be assessed. Identify the specific muscle groups associated with any muscle injuries and identify the specific nerves associated with any neurological impairments. This should also include all symptoms and related impairment that would have been present without the relief provided by medication to treat the disabilities. The Board notes that the nature, severity, signs, and symptoms of the disabilities may vary at different points during the time periods being reviewed by the examiner. Such variations should be reflected in the examination report, if applicable. The examiner should provide range of motion measurements in degrees. In so doing, the examiner should test the Veteran's range of motion in active motion, passive motion, weight-bearing, and in non-weight-bearing. Such range of motion results should be recorded in the report. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly explain why in the report. The examiner must comment on the functional limitations caused by repetitive use over time and flare-ups due to the Veteran's service-connected left knee, right knee, and right fifth finger disabilities. The examiner must indicate whether, and to what extent, the Veteran's range of motion is additionally limited after repetitive use over time and during flare-ups in terms of degrees, if possible. If it is not possible, the examiner should explain why, making clear that all procurable and assembled data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to repetitive use over time and flare-ups elicited from the Veteran) was considered, and that the medical community at large could not provide such an opinion without resorting to speculation. If it is not possible due to a deficiency in the record or a lack of personal medical knowledge, the examiner should state so. Any additional impairment on use or in connection with repetitive use over time and flare-ups should be described in terms of the degree of additional range of motion loss. If the Veteran states that the limitation on range of motion is variable, provide the range of variableness in terms of degrees. The examiner should specifically describe the severity, frequency, and duration of impairment after repetitive use over time and during flare-ups; name the precipitating and alleviating factors; and estimate, per the Veteran, to what extent, if any, such repetitive use over time and flare-ups affect functional impairment. This testing should be done regardless of whether the Veteran is tested after repetitive use over time or during a flare-up or not. The examiner should also provide estimates of what the Veteran's range of motion measurements, symptoms, and related impairment would have been since August 2015 for the service-connected left knee and right knee disabilities and since September 2016 for the service-connected right fifth finger disability without the ameliorative effects of medication used to treat the disabilities, including after repetitive use over time and during flare-ups. After a review of the record on appeal and an examination of the Veteran, the examiner is asked to provide the following opinions: (A) For each knee, is it approximately at least as likely as not (i.e., the likelihood is at least approximately balanced or nearly equal, if not higher) that at any point since August 2015, the Veteran has had (or would have had without the ameliorative effects of medication for the disability): Ankylosis or the functional equivalent? The examiner should discuss whether the ankylosis was favorable or unfavorable for each applicable period and report the angle in flexion or extension involved. Slight, moderate, or severe recurrent subluxation or lateral instability, or the functional equivalent of either? The examiner should discuss whether the recurrent subluxation or lateral instability was slight, moderate, or severe for each applicable period. Dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint or the functional equivalent? If yes, for which periods? Symptomatic removal of semilunar cartilage or the functional equivalent? If yes, for which periods? Genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated) or the functional equivalent? If yes, for which periods? (B) For the right fifth finger, is it approximately at least as likely as not (i.e., the likelihood is at least approximately balanced or nearly equal, if not higher) that at any point since September 2016, the Veteran has had arthritis? If yes, which types, for which periods, and for which joints? In addition to the other relevant evidence of record, the examiner is asked to consider the following information with a caution that this list is not a substitute for a review of the record: Knees (1) A medical record from 2022 showing the Veteran's report of constant right knee pain, right knee popping with running, and left knee grinding. Ibuprofen was used for the knees. There was disturbance of locomotion. Further information is provided. See March 2022 C&P Exam. (2) A medical record from 2020 showing bilateral knee instability, constant pain and throbbing, the use of anti-inflammatories and pain medications during flare-ups, right knee initial extension to 25 degrees, right knee extension with repeated use over time to 35 degrees, left knee initial extension to 15 degrees, left knee extension with repeated use over time to 20 degrees, less movement than normal, weakened movement, excess fatiguability, pain on movement, swelling, disturbance of locomotion, interference with sitting, and interference with standing. The Veteran reported bilateral knee pain while at rest following repeated use over time. Muscle strength bilaterally was 4+/5. There was a history of slight lateral instability and a history of recurrent effusion. The Veteran reported recurrent bilateral knee swelling following increased activity. The right knee showed anterior instability and medial instability of 1+. The left knee showed lateral instability of 1+. There was a bilateral meniscus condition with frequent episodes of joint pain and frequent episodes of joint effusion. The Veteran reported using a knee brace during flare-ups. Further information is provided. See July 2020 VA Examination. (3) The Veteran's report that the right knee hurt to bend and straighten. When first waking up in the morning, the knee would give two loud pops and there would be instant pain. It took about 15 to 20 minutes to be able to slowly walk around. It was kind of locked in position and needed time to get unlocked. The right knee was weak. In the past, the right knee felt like it was dislocating. The right knee had worsened since 2016. For both knees, the Veteran had to wear braces when there was too much pain or swelling. The Veteran usually used the braces three or four times per week, usually after he had been getting on and off of equipment a lot, because that tended to worsen things. Further information is provided. See Hearing Transcript. (4) Medical records from 2016 showing that the right knee popped and caused the Veteran to fall. Left knee pain ran laterally to the ankle once per hour. The Veteran reported shooting pain in both knees, which went to the ankle. See October 2016 CAPRI. (5) Medical records from 2015 and 2016 showing the use of cannabis for knee pain and possibly amphetamines as well. See March 2016 CAPRI. (6) A medical record from 2016 showing that the knees had gradually worsened, the use of Diclofenac daily for relief, right knee extension to 10 degrees after three repetitions, and a report of flare-ups. Further information is provided. See March 2016 C&P Exam. (7) A medical record from 2016 showing Ibuprofen for knee relief. Range of motion for extension was to 10 degrees. Further information is provided. See January 2016 C&P Exam. (8) All other relevant lay and medical evidence. Right fifth finger (1) A medical record from 2022 showing that the right fifth finger would cramp when writing or with repetitive actions. There was pain on motion and disturbance of locomotion. Further information is provided. See March 2022 C&P Exam. (2) A medical record from 2020 showing that during flare-ups, the right fifth finger would not bend at all. The joint became completely stiff. There was a gap of 7 centimeters between the little finger and the thumb pad with the thumb attempting to oppose the fingers. There was painful movement and tenderness to the knuckle increased by the end of the day. There was less movement than normal, weakened movement possibly due to muscle injury, incoordination/impaired ability to execute skilled movements smoothly, swelling, and deformity. Right hand grip muscle strength was 1/5. There was degenerative or traumatic arthritis of the right hand. Further information is provided. See April 2020 VA Examination. (3) The Veteran's report that the right fifth finger wanted to remain sticking out when the hand closed. It would take 20 to 30 minutes or a combination of ice and heat to get the finger to relax. Constant use during the day caused the finger to freeze in the straight position. The finger would stick out to the right and the Veteran could not get it to close. The Veteran had lost some control over the finger in terms of moving it from side to side. The finger had gotten worse since 2016. In cold weather, the finger wanted to completely lock up. The affected joint would become completely stiff during flare-ups. The Veteran suffered from chronic pain throughout the appeal period. Further information is provided. See April 2020 Statement in Support of Claim; Hearing Transcript. (4) A medical record from 2016 showing the Veteran's report that the finger locked up, was stiff, had sharp pain, and resulted in the loss of grip during flare-ups. There was less movement than normal due to ankylosis, adhesions, etc., and weakened movement due to muscle or peripheral nerves injury, etc. Further information is provided. See October 2016 C&P Exam. (5) All other relevant lay and medical evidence. A complete and clear rationale for all opinions offered should be provided. Review and address the previous examinations. Address the Veteran's documented history and assertions. The Veteran is competent to attest to factual matters of which the Veteran has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. All necessary tests and studies should be conducted. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should provide an explanation stating why. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is due to the limits of the medical community's knowledge or due to the limits of the examiner's medical knowledge. 5. Readjudicate the issues on appeal. The AOJ should consider separate ratings, if warranted by the evidence of record. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Dougan, 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.