Citation Nr: 1640825 Decision Date: 10/18/16 Archive Date: 11/08/16 DOCKET NO. 12-31 260 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an increased disability rating in excess of 10 percent for chronic infra-patellar tendonitis; mild degenerative joint disease (DJD), left knee, based on limitation of motion. 2. Entitlement to an increased disability rating in excess of 10 percent for chronic infra-patellar tendonitis; mild DJD, left knee, based on instability. 3. Entitlement to service connection for a left hip condition. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD B. Isaacs, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1976 to February 1979. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was granted service connection and a 10 percent rating for tendonitis and DJD of the left knee, in a June 2010 rating decision. Subsequently, in an August 2012 rating decision, the RO granted a separate 10 percent rating based on left knee instability, retaining the original 10 percent rating for limitation of motion. The issue of entitlement to a TDIU has been raised as a component of the increased rating claims on appeal in light of the Veteran's statements indicating that he can no longer perform his job due to decreased mobility from his left knee disabilities. Thus, the issue is presently in appellate status before the Board and the RO properly included the issue in the most recent supplemental statement of the case. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The June 2010 rating decision also denied service connection for a left hip condition. The Veteran submitted a notice of disagreement (NOD) in May 2011 as to this issue as well. However, the RO has not issued a statement of the case (SOC) on this matter as required. See 38 C.F.R. § 19.26. A remand on the issue is necessary in order to provide the Veteran a SOC. See 38 C.F.R. § 19.9(c); Manlincon v. West, 12 Vet. App. 238 (1999). Thus, this issue has been added to the appeal. The appeal is REMANDED to the agency of original jurisdiction. VA will notify the Veteran if further action is required. REMAND The Board finds that further development is warranted. The Veteran indicated in an October 2012 statement that his service-connected left knee condition was worsening and that he could no longer work as a linesman. Thereafter, the Veteran was afforded a VA examination to determine the severity of his left knee disabilities in December 2012. Upon testing, the examiner found left knee flexion to 120 degrees with painful motion beginning at 90 degrees. She also found no limitation of extension and no additional range of motion limitation following repetitive-use testing. Functional loss included less movement than normal, weakened movement, pain on movement, swelling, interference with sitting, standing and weight-bearing, and an antalgic gate which required use of a cane. With regard to the stability of his left knee, the examiner found medial-lateral instability with 1+ (0-5 millimeters) laxity. She also found no evidence or history of recurrent patellar subluxation/dislocation. The examiner further concluded the Veteran worked as an electrician and he was no longer suited for heavy physical labor due to his left knee pain, antalgic gait and limited mobility. She noted, however, the Veteran would be better suited for a sedentary type job that does not require prolonged standing, walking or climbing. The Board finds that despite the December 2012 VA examination, a remand is required for a new VA examination to fully evaluate the severity of the Veteran's service-connected left knee disabilities. The United States Court of Appeals for Veterans Claims (Court) found that pursuant to 38 C.F.R. § 4.59, joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the undamaged joint. See Correia v. McDonald, 28 Vet. App. 158 (2016). This standard was not satisfied in the December 2012 examination and therefore, the Board finds that another VA examination is warranted. With regard to TDIU, the Veteran asserts in a May 2011 statement that he can no longer seek gainful employment as a journeyman line technician due to decreased mobility of his left leg. In an October 2012 statement, the Veteran indicated he worked all his adult life as a linesman, and he could no longer seek gainful employment as such. As this issue is inextricably intertwined with the increased rating claims, the issue will also be remanded. As noted in the introduction, in May 2011, the Veteran submitted a NOD with the June 2010 rating decision, which in part denied service connection for a left hip condition. The Board finds the statement is considered a valid NOD. When there has been an adjudication by the RO and a timely NOD has been filed, a SOC addressing the issue must be furnished to the appellant. See 38 C.F.R. § 19.9(c); Manlincon, 12 Vet. App. at 238. Thus, this claim will also be remanded. Lastly, in light of the remand, updated VA treatment records must be obtained. 38 C.F.R. § 3.159(c)(1); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: 1. Prepare a SOC in accordance with 38 C.F.R. § 19.29 regarding the issue of entitlement to service connection for a left hip condition. This is required unless the matter is resolved by granting the full benefit sought, or by the Veteran's withdrawal of the NOD. If, and only if, the Veteran files a timely substantive appeal should the issue be returned to the Board. 2 Obtain complete VA treatment records from May 2012, to include from the Alexandria VA Medical Center. 3. Thereafter, arrange for the Veteran to undergo a VA examination to determine the nature and severity of his left knee disability. The claims file must be reviewed. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should record the range of motion observed on clinical evaluation, in terms of degrees of extension and flexion. The examiner should comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. If there is clinical evidence of pain on motion, the examiner should indicate the degree of flexion and/or extension at which such pain begins. The examiner must also test the joints for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly and thoroughly explain why that is so. The examiner should further indicate whether lateral instability and/or recurrent subluxation are present and, if so, the severity of such impairment. Lastly, the examiner must discuss the functional impairment resulting from the Veteran's left knee disabilities on his ability to secure and follow a substantially gainful occupation with consideration of his educational and vocational history as an electrician, and without consideration of nonservice-connected disabilities. All opinions expressed should be accompanied by supporting rationale. 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 Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112. _________________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252, only a decision of the Board is appealable to the Court. 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).