Citation Nr: 1644675 Decision Date: 11/28/16 Archive Date: 12/09/16 DOCKET NO. 10-36 639 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wichita, Kansas THE ISSUES 1. Entitlement to a rating in excess of 30 percent for service-connected degenerative osteoarthritis of the left knee, status post arthroplasty, from December 1, 2004. 2. Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from May 1968 to October 1975. This case initially came before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in July 2008 and March 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The present appeal was previously before the Board in July 2011, May 2014, and August 2015. In July 2011, the Board denied an initial rating in excess of 30 percent for degenerative osteoarthritis of the left knee from June 13, 2003, to October 13, 2003. The Board also remanded the claims for entitlement to an initial evaluation in excess of 30 percent for service-connected degenerative osteoarthritis of the left knee, status post arthroplasty, from December 1, 2004, and entitlement to a TDIU. In May 2014, the Board issued a decision which denied a rating in excess of 30 percent for the service-connected left knee disability from December 1, 2004. The Board again remanded the TDIU claim. In August 2015, the Board found that the Veteran did not satisfy the schedular requirements for assignment of TDIU, and remanded the issue of entitlement to a TDIU on an extraschedular basis. The record reflects the Veteran appealed the Board's May 2014 decision to United States Court of Appeals for Veterans Claims (Court). By an April 2016 memorandum decision, the Court vacated the Board's May 2014 decision to the extent it denied a rating in excess of 30 percent for service-connected degenerative osteoarthritis of the left knee, status post arthroplasty, from December 1, 2004; and remanded the matter for readjudication. For the reasons stated below, the appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Court essentially concluded in its April 2016 memorandum decision that the Board's provided inadequate reasons and bases for its determination the Veteran did not satisfy the criteria for a rating in excess of 30 percent for his service-connected left knee disability from December 1, 2004. Among other things, the Court found that it was not clear the Board considered a VA Advanced Practice Registered Nurse (APRN) July 2012 opinion that the Veteran had severe painful motion or weakness of the left knee in light of her objective treatment notes from July 2009 and November 2011. The Court further noted that the Board did not specifically address the additional treatment notes written by this VA APRN that potentially support her later opinion that the Veteran's pain was severe. The Board also takes note of the fact that the Court recently held in Correia v. McDonald, 28 Vet. App. 158 (2016), that the testing listed in the final sentence of § 4.59 is required unless a medical examiner determines that it cannot or should not be conducted. The pertinent sentence states that the joints involved 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 opposite undamaged joint. Here, it does not appear the range of motion testing conducted on the pertinent VA examinations of the service-connected left knee are in accord with this requirement, to include the most recent examination of this disability in August 2013. As indicated above, this disability is evaluated based, in pertinent, on the extent of painful motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5055. Thus, it calls into question whether the evaluations in this case are adequate for adjudication of this claim. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). In view of the foregoing, as well as a review of the other evidence of record, the Board finds that that a new VA examination is warranted to adequately evaluate whether the Veteran is entitled to a rating in excess of 30 percent for his service-connected left knee from December 1, 2004. See Allday v. Brown, 7 Vet. App. 517, 526 (1995) (Where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination - particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (When the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions.). The Board also observes that the record does not reflect the development directed by the August 2015 remand regarding the TDIU claim has, as yet, been completed. As such, it is not appropriate for adjudication at this time. More importantly, the Board notes that resolution of the left knee claim may affect the Veteran's entitlement to this benefit. Therefore, these issues are inextricably intertwined, and the Board must defer adjudication of the TDIU claim until the development on the left knee claim has been completed. The Board further observes that while it determined in August 2015 the Veteran did not satisfy the schedular standards for assignment of a TDIU, that was based, at least in part, on the fact it had been determined he was not entitled to a rating in excess of 30 percent for the left knee. As the Court's April 2016 memorandum decision has resulted in the issue of the appropriateness of that rating remaining in appellate status, it would appear that the issue of entitlement to TDIU on a schedular basis is once again before the Board. This is particularly true as the Veteran has indicated he is unemployable, at least in part, due to the service-connected left knee. See Rice v. Shinseki, 22 Vet. App. 447 (2009) Accordingly, the case is REMANDED for the following actions: 1. Request the names and addresses of all medical care providers who have treated the Veteran for his left knee or other service connected disorders since March 2013. Even if the Veteran does not respond, determine if there are any outstanding VA medical records for the pertinent period. After securing any necessary release, obtain those records not on file. 2. The Veteran is hereby notified that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature, extent and severity of his left knee symptoms and the impact of this and his other service-connected disabilities on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. After obtaining any additional records to the extent possible, the Veteran should be afforded an examination to evaluate his service-connected left knee disability. The claims folder should be made available to the examiner for review before the examination. It is imperative that the examiner comment on the functional limitations of the left knee during the pendency of this case 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. Further, in accord with the requirements of 38 C.F.R. § 4.59, the joints involved 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 opposite undamaged joint; or an explanation from the examiner that any such testing cannot or should not be conducted. A complete rationale for any opinion expressed must be provided, to include if the examiner determines an opinion cannot be provided without resort to speculation. 4. After completing any additional development deemed necessary, readjudicate the issues on appeal in light of any additional evidence added to the records assembled for appellate review. If it is determined that examination of other service connected disorders is indicated, such examinations should be conducted. The decision should reflect consideration of whether the Veteran is entitled to a TDIU. In pertinent part, if it is determined the Veteran does not warrant a rating in excess of 30 percent for his left knee, then the TDIU claim should be referred to the Director, Compensation Service, for extraschedular consideration in accord with the August 2015 remand directives. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his attorney should be furnished a Supplemental Statement of the Case (SSOC), which addresses all of the evidence obtained after these issues were last adjudicated below, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ MICHAEL D. LYON 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).