Citation Nr: 1633460 Decision Date: 08/24/16 Archive Date: 08/31/16 DOCKET NO. 14-14 932 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for a left knee strain, status post meniscal surgery, to include a total disability rating based on individual unemployability (TDIU) due to the left knee disability. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Jessica O'Connell, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1975 to January 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Jurisdiction over the case was subsequently transferred to the VA RO in Boise, Idaho. The record before the Board consists of the Veteran's electronic records located within the Veterans Benefits Management System (VBMS) and Virtual VA. The Veteran filed his claim for service connection for a left knee disability in September 2011 and in June 2012 the RO granted service connection and assigned a 10 percent disability rating. A timely Notice of Disagreement was received, a Statement of the Case was issued on February 13, 2014, and an untimely VA Form 9 substantive appeal was received on April 25, 2014. 38 C.F.R. § 20.302 (2016). However, the Board finds that the filing of a timely substantive appeal as to this issue was waived by the RO when it continued to take action on this claim, indicating that the Veteran had perfected his appeal to the Board. See Percy v. Shinseki, 23 Vet. App. 37, 43-45 (2009); see also Gonzalez-Morales v. Principi, 16 Vet. App. 556, 557 (2003). Accordingly, the Board has jurisdiction over the issue. The Board further notes that the RO has treated the issue of entitlement to a TDIU as a separate issue from the issue of entitlement to a higher initial rating for the service-connected left knee disability. The record reflects that the Veteran's only service-connected disability is the left knee disability at issue in this appeal. Therefore, entitlement to a TDIU is a component of the claim for a higher initial rating for the service-connected left knee disability. REMAND The Veteran was afforded examinations to assess the severity of his left knee disability in May 2012 and June 2014. Recently, the U.S. Court of Appeals for Veterans Claims determined that the final sentence of 38 C.F.R. § 4.59 (2016) requires that VA examinations include joint testing for pain on active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, No. 13-3238, 2016 WL 3591858 (Vet. App. July 5, 2016). The May 2012 and June 2014 examination reports do not contain the results of all required range of motion testing, and the examiners have not indicated that they were unable to conduct the required testing. Accordingly, a new examination is required. While this case is in remand status, development to obtain any outstanding medical records pertinent to the claim should be completed, to include all outstanding VA treatment records. The record reflects that the Veteran has received treatment at the San Antonio VA Medical Center (VAMC), the Valley Coastal Bend VAMC, and the Boise VAMC. The only VA treatment records associated with the evidence before the Board are from the Boise VAMC dated from October 2012 to November 2012 and from the San Antonio VAMC dated from April 2014 to May 2015. On remand, all outstanding VA treatment records must be obtained and associated with the electronic record. Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA medical records are in constructive possession of the agency and must be obtained if the material could be determinative of the claim). Additionally, the record contains an application for VA's Vocational Rehabilitation program. Although the application does not appear complete, on remand any VA Vocational Rehabilitation records must be requested. If it is determined that the Veteran never attended VA's Vocational Rehabilitation program, this must be documented in the record. Finally, in February 2014 the RO sent to the Veteran a VA Form 21-8940, the Application for Increased Compensation Based on Unemployability, and requested that he complete, sign, and return the form in support of his claim. The Veteran did not respond to that letter. On remand, the Veteran must once again be provided with this form. Accordingly, the case is REMANDED to the RO or the Appeals Management Center (AMC) in Washington, D.C. for the following actions: 1. The RO or the AMC should send the Veteran a VA Form 21-8940, the Application for Increased Compensation Based on Unemployability, and request him to complete, sign and return the form. 2. The RO or AMC should undertake appropriate development to obtain any outstanding medical records pertinent to the Veteran's claim, to include: * San Antonio VAMC records dated prior to April 2014 and from May 2015 to the present; * Boise VAMC records prior to October 2012 and from November 2012 to the present; * Valley Coastal Bend VAMC records for all dates of service; and * Any VA Vocational Rehabilitation records. If any of the above-identified records do not exist, this must be documented in the record. 3. Then, afford the Veteran a VA examination by an examiner with sufficient expertise to determine the current degree of severity of the Veteran's service-connected left knee disability and its impact on his employability. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. The RO or the AMC should ensure that the examiner provides all information required for rating purposes. As noted above, the examiner must conduct range of motion testing for both the service-connected left knee and the nonservice-connected right knee. Specifically, the examiner must record for both knees: * range of active motion; * range of passive motion; * range of motion with weight-bearing; and * range of motion without weight-bearing. If the examiner is unable to conduct the required range of motion testing, he or she should clearly explain why that is so. The examiner should also provide an assessment of the impact of the disability on the Veteran's ability to maintain substantially gainful employment. 4. The RO or the AMC must notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim and that 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 (2016). In the event that the Veteran does not report for the scheduled examination, documentation showing that he was properly notified of the examination must be associated with the record. 5. The RO or the AMC should also undertake any other development it deems to be warranted. 6. Then, the RO or the AMC should readjudicate the Veteran's claim. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND 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). _________________________________________________ Shane A. Durkin 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) (2016).