Citation Nr: 1635498 Decision Date: 09/12/16 Archive Date: 09/20/16 DOCKET NO. 10-45 310 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent prior to February 12, 2016 and 20 percent as of February 12, 2016 for service-connected instability of the left knee. 2. Entitlement to a disability rating in excess of 10 percent for service-connected left knee strain with degenerative joint disease. 3. Entitlement to a disability rating in excess of 10 percent prior to February 12, 2016 and 20 percent as of February 12, 2016 for service-connected instability of the right knee. 4. Entitlement to a disability rating in excess of 10 percent for service-connected right knee strain with degenerative joint disease. 5. Entitlement to a disability rating in excess of 10 percent prior to February 12, 2016 and 30 percent as of February 12, 2016 for service-connected bilateral pes planus. 6. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Veteran and his son ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from July 1972 to April 1983. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in December 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified during a hearing before the undersigned Veterans Law Judge in June 2016. A transcript of the hearing is of record. The Veteran indicated that he was unemployable due to his bilateral knee disabilities and bilateral pes planus in a November 2011 letter. The RO informed the Veteran in an October 2012 rating decision that the issue of entitlement to TDIU will be decided with his pending appeal, as the service-connected disabilities upon which the Veteran was basing his claim for TDIU are under appeal. The United States Court of Appeals for Veterans Claims (Court) holds that a TDIU claim is part and parcel of an initial or increased rating claim when raised by the record. Mayhue v. Shinseki, 24 Vet. App. 273 (2011); Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, the Board finds that the issue of entitlement to a TDIU is on appeal as part of the Veteran's increased rating claims for his service-connected bilateral knee disabilities and bilateral pes planus. Therefore, the Board will assume jurisdiction of the issue of entitlement to a TDIU as indicated on the title page. The issue of entitlement to service connection for pulmonary edema has been raised by the record in the June 2016 Board hearing transcript, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board must reconsider this case in light of Correia v. McDonald, 28 Vet. App. 158 (2016). Correia provides a precedential finding that the final sentence of 38 C.F.R. § 4.59 (2015) requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Regarding the Veteran's service-connected increased rating claims for bilateral knee strain and degenerative joint disease and bilateral pes planus, the Board has reviewed the findings in the Veteran's most recent VA examinations from February 2016 and concludes that these findings do not meet the specifications of Correia. Specifically, the examiner did not address whether the range of motion testing was conducted on active or passive motion and weight-bearing or nonweight-bearing. Given this, the Board is not satisfied that the examination findings are adequate for a contemporaneous rating. Further examination is thus necessary under 38 C.F.R. § 3.159(c)(4). With respect to the Veteran's claim for entitlement to a TDIU, the Veteran was provided with a VA examination in February 2016 to evaluate the Veteran's increased rating claims for his service-connected bilateral knee disabilities and his bilateral pes planus. The examiner determined that the Veteran is unable to engage in prolonged standing and walking, but he is able to engage in sedentary sitting employment. The examiner did not provide any explanation in support of this opinion. Furthermore, it is unclear if he considered the Veteran's education level and work experience in determining that the Veteran is able to engage in sedentary employment. Thus, the Veteran should be provided with another VA examination and opinion to adequately address the functional impact of the Veteran's service-connected disabilities on his ability to obtain and maintain employment. Furthermore, any development of the TDIU issue may have an impact on the complete picture of the Veteran's increased rating claims for instability of the bilateral knees, and its effect on his employability as it pertains to extraschedular consideration. See Brambley v. Principi, 17 Vet. App. 20, 24 (2003). New information obtained after further development of the Veteran's claim for TDIU (to include a VA examination and opinion to determine whether his service-connected disabilities render him unemployable) could produce further evidence regarding the severity of the Veteran's service-connected instability of the bilateral knees, thereby affecting the adjudication of his claims for an increased rating for instability of the bilateral knees. Based on the foregoing, adjudication of the claims for instability of the bilateral knees must be deferred as the Board is remanding the TDIU claim for further development. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran to ask him to inform VA if he has any outstanding VA or private treatment records with respect to the issues on appeal and to elicit from the Veteran the appropriate consent to obtain any relevant private treatment records. If VA secures the proper consent from the Veteran, then attempt to obtain any treatment records related to the Veteran's claims on appeal and associate them with the Veteran's electronic VA claims file. 2. After completing the foregoing and associating any outstanding evidence with the electronic claims file, the Veteran must be afforded an appropriate VA orthopedic examination to determine the current severity of his service-connected bilateral knee and pes planus disabilities, and the effect of his service-connected disabilities on occupational functioning. The evidence of record, in the form of electronic records, must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. Any indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings must be reported in detail. The examiner must first record the range of range of motion of the bilateral knees on clinical evaluation, in terms of degrees. 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. This information must be derived from testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing. The examination report must confirm that all such testing has been made and reflect the results of the testing. 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. Objective evidence of loss of functional use can include the presence or absence of muscle atrophy and/or the presence or absence of changes in the skin indicative of disuse due to the service-connected knee disabilities. The examiner should also address whether the bilateral knee disabilities are characterized by recurrent subluxation; lateral instability; dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion; or ankylosis. The examiner should provide an opinion on whether any recurrent subluxation and/or instability found on examination is considered slight, moderate, or severe. As to bilateral pes planus, the examiner should reports all symptoms and manifestations and report whether the bilateral pes planus is mild, moderate, moderately-severe, severe, or pronounced. The examiner should report whether the bilateral pes planus results in marked pronation, extreme tenderness of plantar surfaces, marked inward displacement and severe spasm of the Achilles tendon on manipulation, marked deformity, pain or swelling on use, characteristic callosities, weightbearing line over or medial to the great toe, or inward bowing of the Achilles tendon. The examiner should report whether the symptoms are improved or relieved by orthopedic shoes, appliances, and/or built-up shoe or arch support. Furthermore, the examiner must address range of motion, painful motion (and at what point it starts), additional loss of motion after repetitions, and functional loss due to pain of the bilateral feet and ankle. This information must be derived from joint testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing. The examination report must confirm that all such testing has been made and reflect those testing results. After completing the above, the examiner should comment on the Veteran's level of occupational impairment caused by his service-connected disabilities (see the February 2016 rating decision codesheet for a complete list), consistent with his education and occupational experience, irrespective of age and any nonservice-connected disorders. The examiner should provide an explanation in support of his or her opinion. The reasons should take into account the Veteran's reported symptoms and clinical findings, as well as, the medical evidence of record. If the Veteran is found able to engage in physical or sedentary work, notwithstanding his service-connected disabilities, the examiner should provide examples of the type(s) of employment the Veteran would be able to perform. The examiner should provide an explanation in support of his or her opinions. 3. Upon completion of the foregoing, readjudicate the Veteran's claims on appeal based on a review of the entire evidentiary record. If the benefits sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and the opportunity to respond thereto. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if in order. The Veteran has the right to submit additional evidence and argument on this matter. 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). _________________________________________________ A. C. MACKENZIE 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) (2015).