Citation Nr: 1624551 Decision Date: 06/20/16 Archive Date: 06/29/16 DOCKET NO. 10-22 956 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an increased evaluation for left knee patellofemoral syndrome with degenerative changes (left knee disability). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Mike A. Sobiecki, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1999 to August 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran appeared at a travel board hearing before the undersigned in February 2016. Entitlement to a TDIU was raised by the Veteran's testimony during the February 2016 Board hearing and it is considered part-and-parcel of the claim for an increased rating for a left knee disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The issue of entitlement to a TDIU has been added to the title page. The appeal is REMANDED to the agency of original jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board finds that further development of this appeal is needed before a decision may be reached. Missing Treatment Records The March 2008 rating decision continued the Veteran's 30 percent rating for a left knee disability based on the findings of a February 2008 VA examination conducted at the Gainesville, Florida, VA Medical Center. This examination report is not contained in the Veteran's claims file. Thus, on remand, this examination report, along with any outstanding VA treatment records, must be obtained and associated with the claims file. 38 U.S.C.A. § 5103A(c) (West 2014). Inadequate VA Examination In June 2013, the Veteran underwent a VA examination to assess the current severity of his left knee disability. He reported to experiencing flare-ups of pain. Where flare-ups are reported, the examination report must address whether pain, weakness, fatigability, or incoordination could significantly limit functional impairment during a flare-up or when the joint is used repeatedly over time. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In regard to this, the examiner wrote: "There really is no way to predict functional ability during a flare-up when it is not witnessed. This would be subjective, presumptive, and speculative at best and an opinion is not feasible and cannot be rendered." Together, the cases of the United States Court of Appeals for Veterans Claims in Mitchell and DeLuca v. Brown stand for the notion that a medical examiner in a case involving a loss of range of motion should discuss functional loss due to pain during flare-ups or explain why such discussion is not feasible. See Mitchell v. Shinseki, 25 Vet.App. 32, 43-44 (2011) (stating that an examiner's failure to discuss functional loss due to flare-ups or "otherwise explain why such detail could not feasibly be determined" rendered the examination report inadequate); DeLuca v. Brown, 8 Vet.App. 202, 206 (1995) (noting that examiners discussing loss of range of motion should, "if feasible," portray determinations in terms of whether additional loss results from pain or flare-ups). In addition, when an examiner writes that a conclusion or opinion cannot be provided without resort to speculation, that determination should reflect the limitations of knowledge of the medical community at large and not those of the particular examiner. Jones v. Shinseki, 23 Vet. App. 382 (2010). The examiner must clearly identify what facts cannot be determined. Id. In this particular case, the examiner did not clearly state why it was not feasible to discuss functional loss due to flare-ups unless the examiner actually witnessed a flare-up. Moreover, the examiner could have asked the Veteran to describe the knee symptoms he experiences during flare-ups, from which the examiner could then have determined whether it was possible to estimate the resulting functional impairment caused by the flare-ups. Because the examiner did not make sufficient efforts to determine whether flare-ups of pain result in additional functional impairment, the Board finds that a new examination is necessary. TDIU The claim of entitlement to a TDIU was raised by the Veteran's testimony during the February 2016 Board hearing and is considered part-and-parcel of the increased rating claim on appeal. Rice, supra. As the resolution of the increased rating claim may affect the Veteran's combined disability rating, the Board finds it appropriate to defer adjudication of the TDIU. The Board also notes that the Veteran previously filed a claim for a TDIU that was denied in a July 2013 rating decision. The denial was not appealed. As it has been a number of years since the denial, the Veteran should be sent VCAA notice for TDIU and be asked to complete a new VA Form 21-8940, Veteran's Application for Increased Compensation based on Unemployability. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records. The February 2008 VA examination report from the Gainesville, Florida, VA Medical Center must be associated with the claims file. 2. Send the Veteran VCAA notice that addresses a claim for TDIU. The Veteran should also be asked to complete a new VA Form 21-8940, Veteran's Application for Increased Compensation based on Unemployability. 3. Thereafter, schedule the Veteran for a VA examination by a physician to determine the current severity of his left knee disability. If possible, this examination should be scheduled at the Tallahassee OPC. The entire claims file must be reviewed in conjunction with the examination report. Because the Veteran has reported experiencing flare-ups of pain, the examination report must include an opinion as to whether pain, weakness, fatigability, or incoordination could significantly limit functional impairment during a flare-up or when the joint is used repeatedly over time. A complete rationale must be provided. All pertinent evidence must be discussed, to include the Veteran's lay statements. If the examiner cannot reach a conclusion on additional functional impairment without resort to mere speculation, it should be made clear that this reflects the limitations of the medical community at large, rather than the limitations of the particular examiner. Moreover, the examiner should also clearly identify what facts cannot be determined. The Board notes that the examiner should ask the Veteran to describe the knee symptoms he has experienced during flare-ups, from which description the examiner may be able to determine whether it is possible to estimate the resulting functional impairment caused by the flare-ups. 4. Finally, readjudicate the appeal. If any of the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. _________________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252, only a decision of the Board 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) (2015).