Citation Nr: 24013294 Decision Date: 03/28/24 Archive Date: 03/28/24 DOCKET NO. 19-33 141 DATE: March 28, 2024 REMANDED Entitlement to a rating in excess of 20 percent for a left knee disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran had active air service from May 1970 to July 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. This case was most recently before the Board in August 2023, at which time the issues on appeal were remanded for additional development. This case has been returned to the Board for further appellate action. Although the Board regrets the additional delay, the Board finds that a remand is required for additional development before a decision is made. In the August 2023 remand, the Board directed that the Veteran be afforded an examination to determine the current level of severity of all impairment resulting from his service-connected left knee disability. A review of the record shows that the Veteran was afforded the directed examination in October 2023. However, a review of that examination report shows that the examination is inadequate. In this regard, the Board notes that there are materially findings included in the examination report that are inconsistent with one another. Specifically, the examiner reported that there was both a history of and no history of recurrent subluxation. Further, the examiner stated that there was not and there was patellar instability. As those findings are of particular importance in assigning a rating for the Veteran's left knee disability, the examination report's internal inconsistencies render the Board unable to proceed with a decision due to insufficient medical evidence. For those reasons, the Board finds that the development conducted does not adequately comply with the August 2023 Board remand directives. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). Thus, the Board finds that a new examination is warranted to determine the current level of severity of all impairment resulting from his left knee disability. The Board notes that the Veteran does not currently meet the schedular criteria for assignment of a TDIU. See 38 C.F.R. § 4.16(a) (2023). As such, the claim of entitlement to such is inextricably intertwined with the rating assigned for the left knee disability. Therefore, the appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Identify and obtain any outstanding, pertinent VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for an examination by an examiner with appropriate expertise to determine the current level of severity of all impairment resulting from his left knee disability. The claims file must be made available to and reviewed by the examiner. Any indicated tests or studies must be performed. Based on the examination results and review of the record, the examiner must provide all information required for rating purposes, to include findings consistent with the decisions in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). 3. Confirm that the examination report comports with this remand and undertake any other development determined to be warranted. 4. Then, readjudicate the appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Randall, 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.