Citation Nr: 18160346
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 15-46 109
DATE:	December 26, 2018
REMANDED
Entitlement to a rating in excess of 10 percent for left knee arthritis status post gunshot wound surgery (hereinafter referred to as a “left knee disability”) is remanded.
Entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU) is remanded.
REASONS FOR REMAND
The Veteran served on active duty from February 1973 to January 1977.
This case originally came before the Board of Veterans’ Appeals (Board) on appeal from May 2013 and February 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO).
The case was last before the Board in August 2018.
1. Entitlement to a rating in excess of 10 percent for a left knee disability is remanded.
In August 2018, the Board remanded this issue for a VA examination.  A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  While substantial compliance is required, strict compliance is not.  D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)).
The Board remand instructed the Agency of Original Jurisdiction (AOJ) to 1) provide a VA examination for the left knee disorder, and 2) readjudicate the claims on appeal.  Specifically, the VA examiner was to 1) indicate all current symptoms associated with the Veteran’s left knee arthritis; 2) provide range of motion (ROM) testing results in active motion, passive motion, weight-bearing, and nonweight-bearing; 3) discuss the extent of any painful motion; and 4) discuss ay functional impairment resulting from the left knee arthritis.
The AOJ scheduled a VA examination in October 2018.  Unfortunately, ROM testing results in passive, weight-bearing, and nonweight-bearing were not provided.  Rather, the examiner only provided ROM test results in, what is assumed to be, active motion, and noted that the Veteran had pain with weight-bearing and no pain on passive ROM testing and with nonweight-bearing.  As such, a remand is required in order to comply with the Board’s remand instructions.
2. Entitlement to a TDIU is remanded.
The Veteran’s claim for a TDIU is inextricably intertwined with the claim remanded herein, and the adjudication of this claim may depend on the outcome of the other remanded claim.  See Parker v. Brown, 7 Vet. App. 116 (1994); 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 cannot be rendered unless both are adjudicated).
The matters are REMANDED for the following action:
1. Schedule the Veteran for a VA examination to evaluate his service-connected left knee disability.  All indicated tests and studies should be accomplished and the findings reported in detail.  The claims file, and a copy of this remand, will be available to the examiner, who must acknowledge receipt and review of these materials in any report generated as a result of this remand.
The examiner is asked to examine the Veteran, review his claims file, and then respond to the following:
(a) Indicate all current symptoms associated with the Veteran’s service-connected left knee arthritis and address its severity.
(b) Test and report the ROM in active motion, passive motion, weight-bearing, and nonweight-bearing for the joint in question AND any paired joint.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, s/he should clearly explain why that is so.  If an opinion cannot be given without resorting to mere speculation, the VA examiner should state so and further provide a reason for such conclusion.
(c) In reporting the ROM findings, comment on the extent of any painful motion, at which measurement the pain begins, functional loss due to pain, weakness, excess fatigability, and additional disability during flare-ups or upon repetitive use testing.
(d) Provide information concerning the functional impairment resulting from the service-connected left knee disability that may impact the Veteran’s ability to function and perform tasks in a work or work-like setting.
The examiner should provide an explanation for any conclusions reached.
2. Thereafter, readjudicate the remanded claims on appeal.

 
S. B. MAYS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Jane R. Lee

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