Citation Nr: 1316155	
Decision Date: 05/16/13    Archive Date: 05/29/13

DOCKET NO.  09-15 859	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUES

1.  Propriety of the reduction in disability rating for instability of the right knee from 30 percent to 10 percent for the period from April 1, 2007 to August 5, 2009.

2.  Propriety of the reduction in disability rating for degenerative joint disease of the right knee from 30 percent to 10 percent for the period from April 1, 2007 to August 5, 2009.

3.  Propriety of the reduction in disability rating for instability of the left knee from 30 percent to 10 percent.

4.  Propriety of the reduction in disability rating for degenerative joint disease of the left knee from 30 percent to 10 percent.

5.  Propriety of the severance of an award of total disability rating due to individual employability (TDIU).



REPRESENTATION

Appellant represented by:	West Virginia Division of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

B. Thomas Knope, Counsel


INTRODUCTION

The Veteran served on active duty from September 1973 to November 1975.

This matter is on appeal from a January 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  Jurisdiction over the claim is with the RO in Pittsburgh, Pennsylvania.    

The Veteran testified before the undersigned Veterans Law Judge in February 2011.  A transcript of the hearing is of record.

This appeal was remanded by the Board in September 2011 for further development and is now ready for disposition.

While the Veteran has submitted additional evidence since the most recent adjudicative decision, the Board has reviewed this evidence and finds that it is not relevant to adjudication of the claim on appeal to the extent that it is being adjudicated.  Therefore, review of the claims at the point would not result in any prejudice to the Veteran.  

In its September 2011 Remand, the Board noted that the Veteran underwent a right knee arthroplasty in August 2009.  In doing so, the RO recharacterized his disability from a 10 percent rating under 38 C.F.R. § 4.71a, DC 5261 (addressing limitation of extension) to a 100 percent rating under DC 5055 (addressing residuals of a prosthetic knee replacement), effective August 5, 2009.  In accordance with DC 5055, a 30 percent disability rating was ultimately assigned after a period of one year.  In view of these actions, the Board concluded that the relevant period on appeal for the question of whether the reduction in his 30 percent rating under DC 5261 was proper ran from April 1, 2007 to August 5, 2009.  

However, the Board did not discuss the impact of the Veteran's right knee arthroplasty on his separate rating for instability in the right knee under 38 C.F.R. § 4.71a, DC 5257.  In this case, the Board determines that relevant period on appeal for the issue of whether it was proper to reduce the Veteran's rating for instability in the right knee from 30 percent to 10 percent under DC 5257 must also end on August 5, 2009, the date his right knee arthroplasty.  Although the Board may not make its own medical conclusions, see Colvin v. Derwinski, 1 Vet. App 171 (1991), it may take notice of the fact that prosthetic knees are inherently stable by design.  Indeed, while DC 5055 does contemplate intermediate disability ratings based on continued limitation in range of motion, there is no part of this diagnostic code which contemplates continued instability.  Therefore, a continued disability rating for instability of the right knee for the time since his knee was replaced on August 5, 2009 is inconsistent with not only the relevant criteria, but also common sense.  

Recognition is given to the fact that the Veteran's 10 percent rating under DC 5257 has been in place since November 1975, and has been in effect well over 20 years.  In this regard, 38 C.F.R. § 3.951(b) states that a "disability which has been continuously rated at or above any evaluation of disability for 20 or more years for compensation purposes under laws administered by the Department of Veterans Affairs will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud."  See also Murray v. Shinseki, 24 Vet. App. 420 (2011) (changing an applicable diagnostic code that has been in place for 20 years or more, even if to more accurately characterize the disability, is impermissible).  

However, the Board determines that 38 C.F.R. § 3.951(b) and the holding by Court of Appeals for Veteran's Claims in Murray are inapplicable to this case.  Unlike Murray, where the diagnostic code associated with the veteran's disability was changed, the very nature of the disability itself has changed in this instance.  Indeed, one of the basic purposes of a prosthetic knee replacement is to cure instability and VA has long determined that statutes protecting disability ratings should not be so strictly read so as to prevent correcting the Veteran's record where to do otherwise would result in "clearly absurd results."  See VAOPGCPREC 13-92 (June 2, 1992); VAOPGCPREC 50-91 (March 29, 1991).

Moreover, the Board points out that only the 10 percent rating under DC 5257 was protected and, since the Veteran's now has a current 30 percent rating under DC 5055, he has never been deprived of the benefits upon which he has previously relied.  Rather, as U.S. Court of Appeals for the Federal Circuit has pointed out, the point of rules such as 38 C.F.R. § 3.951(b) was to protect "veterans with long-standing determinations . . . from suddenly having the determination . . . stripped."  Read v. Shinseki, 651 F.3d 1296, 1301 (Fed. Cir. 2011).  In this case, the Veteran's benefits were not "stripped," but were actually increased.  

Therefore, as there is no basis for a rating under DC 5257 based on instability of the right knee after it was replaced on August 5, 2009, the question of whether it was proper to reduce his rating from 30 percent to 10 percent for this disability is limited to the period from April 1, 2007 to August 5, 2009.  The claim has been recharacterized as such.  

The issue of whether the reduction of the ratings for the Veteran's left knee disability was proper, as well the severance of TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.



FINDINGS OF FACT

1.  In a June 2002 rating decision, the RO increased the Veteran's disability ratings for both instability and limitation of motion in the right knee from 10 percent disabling to 30 percent disabling.  Both ratings were made effective March 14, 2002.  

2. In February 2006, based on objective findings obtained from an August 2005 VA examination, the RO proposed to reduce the Veteran's ratings for both instability and limitation of motion in the right knee from 30 percent disabling to 10 percent disabling.  

3. In a January 2007 rating decision, the Veteran's disability ratings for both instability and limitation of motion in the right knee were reduced from 30 percent disabling to 10 percent disabling, effective April 1, 2007.

4. The reductions were carried out in accordance with applicable procedures.

5. The Veteran's 30 percent disability ratings for both instability and limitation of motion in the Veteran's right knee had been in effect for a period greater than 5 years.  

6. For the relevant period on appeal, the Veteran's right knee arthritis was characterized by limitation of extension to 10 degrees and limitation of flexion to 60 degrees; limitation of flexion to 30 degrees, limitation of extension to 15 degrees and ankylosis of the knee have not been shown. 

7.  For the relevant period on appeal, the evidence has not established that the instability in the Veteran's right knee has stabilized.  



CONCLUSIONS OF LAW

1. The reduction of a 30 percent disability rating for limitation of motion of the right knee to 10 percent for the period from April 1, 2007 to August 5, 2009, was proper. 38 U.S.C.A. § 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.105(e), 3.344, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code (DC) 5260, 5261 (2012).

2. The reduction of a 30 percent disability rating for instability of the right knee to 10 percent for the period from April 1, 2007 to August 5, 2009, was improper. 38 U.S.C.A. § 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.105(e), 3.344, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5257, 5258, 5259 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability).  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included.  Id.

In this case, however, the reduction in the Veteran's disability ratings was not prompted by a claim submitted by the Veteran.  Rather, the action was undertaken as a result of a review of medical records and a VA medical examination. After reviewing the medical evidence, the RO thereafter followed the procedures outlined in 38 C.F.R. § 3.105(e), which included notice requirements specifically relating to reductions of compensation awards, as will be discussed in greater detail below. Consequently, the notice requirements of the VCAA do not apply.

Next, VA has a duty to assist a veteran in the development of the claim.  This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary.  See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). 

After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  First, the RO has obtained the Veteran's service treatment records, VA outpatient treatment records and records submitted in conjunction with a claim to the Social Security Administration (SSA).  Further, the Veteran submitted treatment records from a private facility as well as his own statements in support of his claim.  

Additionally, VA examinations with respect to the issue on appeal were obtained in August 2005 and August 2007.  38 C.F.R. § 3.159(c) (4).  To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the VA examinations obtained in this case are more than adequate, it they are predicated on a full understanding of the Veteran's medical history, and provides a sufficient evidentiary basis for the claim to be adjudicated.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met.  38 C.F.R. § 3.159(c) (4).  

The Veteran was also afforded a hearing before the undersigned hearing officer in February 2011.  The hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), which consist of (1) fully explaining the issue and (2) suggesting the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).  Notably, the Veteran was specifically asked about the nature and severity of his service-connected knee disabilities and hot it affects his daily functioning.    

Finally, it is noted that this appeal was remanded by the Board in September 2011 for further development. Specifically, the Board instructed the RO to obtain the most up-to-date VA treatment records, SSA records and any private treatment records that may be in the Veteran's possession.

The Board is now satisfied there was substantial compliance with this Remand.  See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  Notably, the record now includes VA treatment records through 2012, as well as the records submitted in conjunction with a claim for benefits with the SSA.  Moreover, the record also includes a number of private treatment records.  After the required development was completed, this issue was readjudicated and the Veteran was sent a supplemental statement of the case in October 2012.  Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case.

Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Reductions in Rating

In this case, the Veteran has been service-connected for a right knee disability since November 1975.  At that time, a 10 percent disability rating was assigned under 38 C.F.R. § 4.71a, DCs 5257 (addressing instability of the knee).  After he submitted a new claim seeking an increased rating in March 2002, the RO issued a rating decision in June 2002 that increased his previously assigned disability rating to 30 percent, and also granted a separate 30 percent rating based on limitation of motion under 38 C.F.R. § 4.71a, DCs 5261 (addressing limitation of extension).   Rating a knee in this manner is consistent with VA regulations, in that a claimant who has arthritis and instability of the knee may receive separate ratings under DCs 5003 and 5257 or 5258/5259.  See VAOPGCPREC 23-97; see also VAOPGCPREC 09-04.  The June 2002 decision also granted entitlement to TDIU.  See 38 C.F.R. §§ 3.340(a)(1), 4.16(a) (2012).

However, the June 2002 rating decision specifically noted that the assigned ratings were not permanent, and a follow-up VA examination was conducted in August 2005.  Based on the results of that examination, the RO concluded in February 2006 that the Veteran's right knee disability was better than the previously assigned rating, and proposed to reduce both 30 percent ratings to 10 percent for each.  Although the Veteran did submit additional evidence in support of his assigned ratings, the RO nevertheless determined in January 2007 that a reduction was warranted, and the Veteran's 30 percent ratings were both reduced to 10 percent, effective April 1, 2007.  He has subsequently disagreed with these reductions.  

Before addressing whether these reductions were warranted, the Board must first determine whether the RO adhered to the proper procedure.  Specifically, where a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. VA must also notify the Veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. 38 C.F.R. § 3.105(e) (2012).

After completing the predetermination procedures, VA must send the Veteran written notice of the final action, which must set forth the reasons for the action and the evidence upon which the action is based.  Where a reduction of benefits is found warranted and the proposal was made under the provisions of 38 C.F.R. § 3.105(e), the effective date of the final action shall be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires. 38 C.F.R. § 3.105(i)(2) (2012).

In the present case, the February 2006 proposed reduction was accompanied by a notice letter that notified the Veteran of the proposed action, the reasons and bases therefore, and was given the required 60 days to present additional evidence and to request a hearing before the RO subsequently implemented the rating reduction in an its January 2007 rating decision, effective April 1, 2007.  He was further notified of the action taken and his appellate rights in the January 2007 rating decision. As such, VA met the due process requirements under 38 C.F.R. § 3.105(e) and (i) (2012).

The Board must now consider whether the reduction in rating was proper.  It is noted at the outset that the 30 percent ratings had been in effect from March 14, 2002 to April 1, 2007, which is slightly over five years.  In cases where a rating has been in effect for more than 5 years, changes of medical findings or diagnosis must be addressed in a way as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. 38 C.F.R. § 3.344(a) and (c).  It is essential that the entire record of examination and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Id.

By contrast, if the evidence indicates that the improvement is temporary or episodic in nature, it will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated.  Id. Moreover, though material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. Id.  Failure to observe C.F.R. § 3.344(a) will render the reduction per se improper.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

While only VA examination the Veteran underwent during the period on appeal was in August 2007, the Board may consider his prior VA examination in August 2005 in order to determine whether there has been permanent improvement with his condition.  See also Moore v. Shinseki, 555 F.3d 1369 (2009) (holding that records from other than a relevant period on appeal must nevertheless be considered, as 38 C.F.R. § 4.1 requires that "a veteran's disability must be evaluated in light of its whole recorded history").    

Limitation of Motion

The Board first considers whether the reduction from 30 percent to 10 percent based on limitation of motion was proper.  In order to warrant a rating in excess of 10 percent for the Veteran's right knee based solely on limitation of motion, the evidence must show: 
* Limitation of flexion (20 percent for 30 degrees and 30 percent for 15 degrees under DC 5260); 
* Limitation of extension (20 percent for 15 degrees and 30 percent for 20 degrees under DC 5261); 
* Any combination of limitation of flexion and limitation of extension (providing separate compensable ratings under DCs 5260 and 5261, respectively); or 
* Favorable ankylosis of the knee at full extension or in slight flexion between 0 and 10 degrees (30 percent under DC 5256). 
See 38 C.F.R. § 4.71a (2012).

Based on the evidence of record, the Board finds that the reduction of the rating for the Veteran's right knee based on limitation of motion was proper, as limitation of motion only to a 10 percent level has consistently been shown.  Specifically, at his VA examination in August 2005, the Veteran reported that his major problem was pain, which he rated as a 7 to 10 out of 10.  While he used to wear braces, he does not any longer, and he did not use a cane to ambulate.  Upon examination, he exhibited patellar facet tenderness, and his range of motion was observed to be 120 degrees of flexion and 10 degrees of extension.  While there was pain upon repetitive motion, there was no increased limitation of motion following such repetitions.  

Moreover, at his more recent VA examination in August 2007, the Veteran again complained of chronic pain that had increased over the more recent years.  While he wore a brace on the knee twice a week, he did not use any assistive devices.  Upon examination, his extension was again observed to be only to 10 degrees and his flexion was limited to 80 degrees, although his flexion was limited to 60 degrees by pain.  While he did indicate decreased endurance, there was no additional limitation after repetitive motion.  Thus, while these examinations indicate that a 10 percent rating is warranted for the limitation of extension in the Veteran's right knee, there was insufficient limitation to warrant a rating greater than this.  

In addition to the VA examinations, the Veteran has undergone outpatient treatment for his knee complaints on a number of occasions.  However, there is no indication of any limitation of motion in the right knee.  To the contrary, at a physical therapy consultation in March 2009, a normal range of motion was observed.  

In evaluating the extent of the Veteran's disability in terms of range of motion, the Board has included consideration of the functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  In this case, while the Veteran complains of knee pain, it does not appear that his pain results in additional functional loss.  See Mitchell v. Shinseki, 25 Vet. App. 32, 37-43 (2011) (pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination or endurance).  Put another way, while the Veteran has complained of pain, these complaints are adequately contemplated in the ratings he currently receives.  

The Board recognizes the Veteran's assertions that the limitation of motion in his knee has not improved, and concedes that he is competent to report the symptomatology he experienced as it comes to him through his senses.  Layno v. Brown, 6 Vet. App. 465, 470 (1994).  However, to the extent that the Board finds that his rating reduction was proper, the Board attaches greater probative weight to the clinical findings of skilled, unbiased professionals than to his statements made in connection to his claim for VA benefits.  See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (holding that interest in the outcome of a proceeding may affect the credibility of testimony).

Therefore, based on these clinical observations, the Board concludes that the limitation in range of motion in the Veteran's right knee is stable, and is best characterized as 10 percent disabling based on limitation of extension under DC 5261.  Therefore, the reduction in rating from 30 to 10 percent based on limitation of motion was proper.

Instability

Next, the Board considers whether the reduction from 30 percent to 10 percent based on instability was proper.  In order to warrant a rating in excess of 10 percent for a knee disability based on instability, the evidence must show:
* Dislocation of the semilunar cartilage with frequent episodes of "locking," pain and effusion in the joint (20 percent under DC 5258); or
* Recurrent subluxation or lateral instability (under DC 5257; 20 percent for "moderate" symptoms, and 30 percent for "severe" symptoms). 
See 38 C.F.R. § 4.71a.  While DC 5257 does not define nonspecific words such as "moderate" or "severe," the Board must instead evaluate all of the evidence to the end that its decision is "equitable and just." See 38 C.F.R. § 4.6

In this case, the Board determines that the reduction rating for the Veteran's right knee based on instability was improper, and that a 30 percent rating is warranted for the period on appeal.  Specifically, at his first VA examination in August 2005, he stated that he has worn a knee braces and complained of weakness in both knees, with the right knee worse than the left.  Upon examination, he exhibited medial and lateral joint line tenderness, but was stable to varus and valgus stress.  Based on such observations, it is reasonable to conclude that a reduction should be contemplated.  

However, the observations of the VA examiner in August 2007 do not support the conclusion that the Veteran's knee symptoms had stabilized.  On that occasion, the Veteran stated that he experienced subluxation on a daily basis, and he was forced to walk carefully in order to avoid subluxation.  He also stated that he experienced locking to the right knee approximately two times per month.  Although his knee was stable upon examination, there is no reason to doubt that the Veteran was actually experiencing the symptoms he complained of.  

Moreover, the outpatient treatment notes support the Veteran's assertions that the instability in his right knee had not improved.  For example, in October 2008, he underwent an MRI for persistent pain in his right knee, which had buckled three weeks before.  In July 2009, he again complained that he had a history of his right knee giving way.  An X-ray of the right knee also revealed a varus deformation.  

Given this clinical evidence, the Board cannot conclude that the Veteran has experienced a lasting improvement in the stability of his right knee.  As such, the reduction of his long-standing 30 percent rating based on instability was improper.  It should also be tangentially noted that he has experienced a number of injuries to the semilunar cartilage.  However, discussion of this aspect of his disorder is unnecessary at this point, as any compensable rating under DC 5258 would have been superseded by his 30 percent rating under DC 5257.  

In conclusion, the Board concludes that the RO's reduction of the Veteran's evaluation for his right knee disability based on limitation of motion from 30 percent disabling to 10 percent disabling was proper.  However, as the evidence does not indicate that the instability in his right knee has reliably improved, the reduction from 30 percent to 10 percent for instability in the right knee was improper, and the 30 percent rating should be restored.  



ORDER

The reduction in disability rating for instability of the right knee from 30 percent to 10 percent from April 1, 2007 to August 5, 2009, was improper, and a 30 percent rating is warranted for this period, subject to the laws and regulations governing the payment of monetary benefits.

The reduction in disability for service-connected degenerative joint disease of the right knee from 30 percent to 10 percent from April 1, 2007 to August 5, 2009, was proper.


REMAND

Regarding whether the reduction in ratings based on instability and limitation of motion in the left knee were proper, additional development is required before the claim may be adjudicated.  

First, while the Board has determined that relevant period on appeal for the Veteran's right knee claim is limited to the period April 1, 2007 to August 5, 2009 (due to his right knee arthroplasty),  there is no such limitation to the left knee.  Thus, to the extent that the October 2012 supplemental statement of the case characterized an issue on appeal as "[p]ropriety of the reduction in disability for service connected degenerative joint disease of the left knee from 30 percent to 10 percent from April 1, 2007 to August 5, 2009," this is erroneous.  

While this error may be merely typographic, the accompanying analysis did not discuss any of the evidence since August 2009.  Therefore, the Board is left to presume that the issue was not properly addressed, and there has not been compliance with this aspect of the September 2011 Remand.  See Stegall, 11 Vet. App. at 268.  Therefore, this issue must be reevaluated based on all the evidence of record.  

Moreover, since the 30 percent ratings the Veteran received for the instability and degenerative arthritis in his left knee were in place for over 5 years, there must be a determination as to whether his disability has stabilized.  38 C.F.R. § 3.344(a) and (c).  In this case, it is unclear whether his left knee disability had indeed stabilized.  For example, at his August 2005 VA examination, he exhibited no effusion, erythema or swelling, and he was stable to valgus or varus stress.  However, at his August 2007 VA examination, the examiner noted positive McMurray's test, as well as "positive laxity with anterior and posterior drawer testing and Lachman's to the left knee."  Moreover, there has not been any consideration of the fact that he has undergone numerous procedures to the semilunar cartilage.  Therefore, a new VA examination is necessary to the current extent of his left knee disability.  

Finally, as to the issue of TDIU, this issue is part of the underlying appeal, it must be addressed when the claim is readjudicated.  However, it should not be considered until the necessary development of the underlying claim is completed.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a decision cannot be rendered unless both are adjudicated).  An opinion is also necessary on this question, in view of the Board's determinations, as well as the fact that the Veteran has been recently service-connected for other disabilities.  

Accordingly, the case is REMANDED for the following action:

1.  Acquire any treatment records that may be available from the VA Medical Center in Pittsburgh, Pennsylvania, or from any other VA medical center where he has received treatment, for the period since September 2012.

If the Veteran has received any private treatment related to his left knee disability, and such records are not already associated in the claims folder, they should be acquired after obtaining the Veteran's authorization.

The attempts to obtain these records should be specifically documented in the claims file. If the Veteran fails to provide proper authorization or the records are unavailable, this should also be specifically noted.

2. Schedule the Veteran for a new VA examination in order to determine the current nature and severity of his service-connected left knee disability. The claims folder should be made available to the examining physician. All indicated tests and studies should be accomplished and the findings then reported in detail.

The examiner should describe all symptomatology related to the Veteran's service-connected left knee disability to specifically include: 
* The range of motion in flexion and extension, to include the degree in motion at which pain begins; the degree of instability (if any) in the knee; 
* The condition of the semilunar cartilage to include a history of any surgical repairs, if any; and 
* The degree of functional loss that results from any knee symptoms, to include symptoms such as locking, weakness, and instability.  Examples of functional loss include the ability to perform "normal working movements" with strength, speed, coordination or endurance. 

The examiner must consider the Veteran's lay statements regarding his disability, to include how his left knee impairment affects his daily activities. All findings and comments should be set forth in a legible report.

3.  Schedule the Veteran for an appropriate VA examination to determine the effects of his service-connected disabilities on his ability to maintain employment consistent with his education and occupational experience.

The claims file and a complete copy of this Remand must be made available to the VA examiner for review in conjunction with the employment examination. All necessary special studies or tests are to be accomplished. The VA examiner must elicit from the Veteran and record for clinical purposes a full work and educational history.

Based on a review of the case and the claims file, the VA examiner must provide an opinion as to whether the Veteran's service-connected disabilities collectively preclude him from securing and following substantially gainful employment consistent with his education and occupational experience.

The term "substantially gainful employment" is defined as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. See Faust v. West, 13 Vet. App. 342 (2000).

The examiner must consider the Veteran's lay statements regarding his disorders. All findings and comments should be set forth in a legible report and any opinions should be accompanied by a thorough discussion explaining the basis for the given opinion. Such an explanation may include, but is not limited to, a discussion of the Veteran's symptoms, his current service-connected disabilities, his symptoms during active duty service, and the presence of any underlying pathology.

4. Thereafter, readjudicate the issues remaining on appeal.  If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case (SSOC) and provided opportunity to respond. Then, return the case to the Board for further appellate consideration, as appropriate.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
CAROLE R. KAMMEL
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs