Citation Nr: 1521444 Decision Date: 05/19/15 Archive Date: 05/26/15 DOCKET NO. 09-28 505 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for a right knee disability. 2. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from September 1996 to July 1998. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In September 2010, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A copy of the transcript of this hearing has been added to the record. In December 2010, and again in September 2012, the Board remanded this matter for additional evidentiary development. In September 2013, the Veteran filed a claim seeking entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU). A request for TDIU is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, entitlement to TDIU is now listed as an issue on appeal. In October 2014, the Board issued a decision which denied an evaluation in excess of 30 percent for a right knee disability. The Veteran timely appealed this decision to the United States Court of Appeals for Veterans Claims (Court). Based on a February 2015 Joint Motion for Remand (Joint Motion), the Court remanded the appeal for additional development and consideration. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran is seeking an increased evaluation for her right knee disability. She further contends that she is now unemployable and entitled to TDIU benefits. Remand is required for compliance with VA's duty to assist the Veteran in substantiating her claims. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2014). The February 2015 Joint Motion contended that the Board failed to adequately consider the functional loss exhibited by the Veteran's right knee disability during flare-ups; and failed to adequate consider whether the Veteran is entitled to a separate rating under Diagnostic Code 5263, which is used in rating genu recurvatum (hyperextension of the knee). 38 C.F.R. § 4.71a, Diagnostic Code 5263. After reviewing the contentions within the Joint Motion, the Board concludes that VA examination findings of right knee extension to "0 degrees or any degree of hyperextension" to be ambiguous as to whether hyperextension is actually present. Under these circumstances, the RO should obtain the Veteran's updated treatment records, and then schedule her for an updated examination to determine the current severity of her right knee disability. 38 C.F.R. § 3.159(c)(4)(i) (2013); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (finding that if VA provides the Veteran with an examination, the examination must be adequate); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that VA's statutory duty to assist includes a thorough and contemporaneous medical examination); see also See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is remanded for the following action: 1. Undertake all indicated development to obtain any outstanding records pertinent to the Veteran's claims, including obtaining updated treatment records. 2. Thereafter, the Veteran must be afforded an examination to determine the current degree of severity of her service-connected right knee disability. The claims files and all pertinent electronic evidence not contained in the claims files must be made available to and reviewed by the examiner. All indicated testing must be conducted. The examiner must conduct full range of motion studies on the service-connected right knee. The examiner must first record the range of motion on clinical evaluation, in terms of degrees with a goniometer. In doing so, the examiner must specifically indicate if any hyperextension of the right knee is found; and if so, the degree of that hyperextension must be listed. If there is clinical evidence of pain on motion, the examiner must indicate the specific degree of motion at which such pain begins. The same range of motion studies must then be repeated after at least three repetitions and after any appropriate weight-bearing exertion. Then, after reviewing the Veteran's complaints and medical history, the examiner must render an opinion as to the extent to which the Veteran experiences functional impairments, such as weakness, excess fatigability, lack of coordination, or pain due to repeated use or flare-ups, etc. The examiner must also indicate whether there is any recurrent subluxation or lateral instability of the Veteran's right knee, and if so, whether it is slight, moderate, or severe. Finally, the examiner must express an opinion as to the effect of the Veteran's right knee disability on her ability to obtain and maintain gainful employment. All opinions provided must include a complete rationale. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report must be typed. 3. The examination report must be reviewed to ensure that they are in complete compliance with the directives of this remand. If a report is deficient in any manner, the RO must implement corrective procedures. 4. Notify the Veteran that it is her responsibility to report for any examination scheduled, and to cooperate in the development of her claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2014). In the event that the Veteran does not report for a scheduled examination, documentation showing that she was properly notified of the examination must be associated with the record. 5. Then, the issues remaining on appeal must be readjudicated. If any benefit sought on appeal is not granted to the Veteran's satisfaction, she must be provided a supplemental statement of the case and the requisite opportunity to respond before the case is returned to the Board for further appellate action. The appellant has the right to submit additional evidence and argument on the 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 2014). _________________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).