Citation Nr: 1740407 Decision Date: 09/18/17 Archive Date: 09/29/17 DOCKET NO. 13-10 918 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to a disability rating higher than 20 percent for lumbosacral strain with sacralization of L5 with joint space narrowing (lumbar spine disability). 2. Entitlement to a disability rating higher than 10 percent for degenerative joint disease of the right knee. 3. Entitlement to a disability rating higher than 10 percent for degenerative joint disease of the left knee. 4. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran served on active duty from October 1972 to June 1979 and from February 1983 to September 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in October 2012 by a Department of Veterans Affairs (VA) Regional Office (RO); which denied the increased rating claims. In July 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. In September 2015, and again in November 2016, the Board remanded the claims for increased rating, and the issue of TDIU, for further development and consideration. Unfortunately, further action is needed. The appeal is REMANDED to the agency of original jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In its November 2016 remand, the Board requested that the Veteran be contacted regarding any extant private medical records, and in December 2016 the requested letter was dispatched by the AOJ. Later that month, the Veteran submitted requisite information and authorization for records from Physicians' Clinic of Stilwell, Oklahoma, and in a letter dated January 9, 2017, the AOJ informed the Veteran that it had requested the identified records. Although the Veteran was informed that obtaining the records was ultimately his responsibility, the AOJ never informed the Veteran that it had terminated all attempts to obtain the identified records because the provider was requesting a fee for the service. See AOJ's January 9, 2017, Record of Contact. Remand for compliance with 38 C.F.R. § 3.159(e) is required so the Veteran can be notified of these circumstances and attempt to obtain the records himself if he wishes. In addition to the foregoing, the Board also requested that the Veteran be afforded a new VA examination (see November 2016 Board remand); and on December 27, 2016 an examination was done. Unfortunately, the examiner (a private nurse practitioner), did not provide requisite examination findings, such as range of motion findings after 3 repetitions, or passive range of motion findings; or a reasonable response for failing to do so. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998) (holding that remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the Board's remand order). Moreover, the examination reports contain confusing information. For instance, during the back examination the Veteran complained of severe pain in his lower back on bending or squatting and with prolonged standing and lying on his left side, and according to the examiner there was pain on physical examination; however, the examiner then stated that there was no pain on weight bearing. Additionally, during the knee examination the Veteran complained of "shooting pain from the knee throughout the whole leg" when he "puts load on the knee;" however, the examiner said there was no pain on examination, but then notated that there was pain on weight bearing. In accordance with 38 C.F.R. § 3.326, the Veteran should be afforded a new examination. Moreover, on remand, the examiner should "estimate the functional loss that would occur during flares." See Sharp v. Shulkin, No. 16-1385 (U.S. Vet. App. Sept. 6, 2017). In light of the remand of the rating claims, the TDIU claim will also be remanded. Accordingly, the case is REMANDED for the following actions: 1. With regard to the Veteran's December 2016 release for medical records, issue notice to the Veteran in accordance with 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a VA examination to ascertain the severity of his service-connected lumbar spine disability, and his left and right knee degenerative joint disease disabilities. The examination should be done by a chiropractic or physical therapist if possible. The examiner must discuss the Veteran's current complaints and symptoms with the Veteran and document said in the examination report. The claims file should also be reviewed by the examiner. The examiner should specifically test the lumbosacral spine and knees for pain on both active and passive motion, in weight bearing and nonweight-bearing and, if possible, with the range of motion of the opposite undamaged joint. The examiner should also estimate the functional loss that would occur during flares. The examiner should also comment on the impact of the Veteran's service-connected lumbosacral spine and bilateral knee disabilities on his activities of daily living and occupational functioning. If any of these assessments cannot be accomplished, it should be explained why. A complete rationale should be provided for all opinions reached. 3. Then, readjudicate the claims. If any benefit sought remains 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. _________________________________________________ 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 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).