Citation Nr: 1751116 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 11-18 941 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a rating in excess of 20 percent for left chondromalacia patella with meniscus tear, to include entitlement to a separate rating for arthritis ("left knee disability"). 2. Entitlement to a rating in excess of 20 percent for right chondromalacia patella with meniscus tear, to include entitlement to a separate rating for arthritis ("right knee disability"). 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to May 22, 2014. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD N. Nelson, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1985 to June 1989. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which continued 10 percent ratings for the left and right knee disabilities. The Veteran testified at a videoconference hearing before the undersigned in October 2015 and a transcript of that hearing is of record. In April 2016, the Board increased the ratings for the left and right knee disabilities to 20 percent under Diagnostic Code 5258. The Veteran appealed the issues to the United States Court of Appeals for Veterans Claims (Court), and in June 2017, the Court granted a Joint Motion for Partial Remand (JMPR), vacating and remanding the issues, to include entitlement to separate ratings for arthritis and entitlement to a TDIU prior to May 22, 2014. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Pursuant to the June 2017 JMPR, remand is necessary to afford the Veteran a VA examination of the knees. The Veteran previously had VA examinations of the knees in February 2010 and November 2014. Since then, however, the Court has held that "the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities." Correia v. McDonald, 28 Vet. App. 158 (2016). The Court also stated that in order "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59." Id. at 169-70. 38 C.F.R. § 4.59 states that "[t]he 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, as noted in the JMPR, the February 2010 examiner did not address whether there was additional functional loss during flare-ups and the November 2014 examiner's rationale for why she was unable to provide an opinion without speculation was unclear and did not permit effective judicial review. In addition, neither examination report contained test results for pain on both active and passive motion, or in weight-bearing and nonweight-bearing. As such, further examination is necessary. On remand, updated VA treatment records should also be obtained. VA has a duty to seek the additional records. 38 U.S.C.A. § 5103A(b)(1). Finally, with regard to the issue of entitlement to a TDIU prior to May 22, 2014, any decision on the increased rating claims being remanded herein may affect the claim for a TDIU. Consideration of entitlement to a TDIU must therefore be deferred until the intertwined issues are resolved or prepared for appellate consideration. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following action: 1. Obtain from the VA healthcare system all outstanding relevant treatment records of the Veteran dated from September 2016 to present. All records/responses received should be associated with the claims file. If any records sought are not obtained, a written statement to that effect should be incorporated into the record. 2. Schedule the Veteran for a VA examination of the knees to ascertain the current severity and manifestations of the service-connected knee disabilities. The claims file should be provided for the VA examiner's review prior to writing the examination report. The examiner should conduct all testing required and review the results of any testing prior to completion of the examination report. The examiner is specifically requested to test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. The examiner must state at what specific degree of motion pain begins at and in describing flare-ups discuss any additional degrees of limited motion during these flare-ups, or due to such factors as pain, pain on motion, weakness, incoordination, or fatigability. 3. After completing all indicated development, and any additional development deemed necessary, readjudicate the claims. If any benefit sought on appeal remains denied, then a fully responsive supplemental statement of the case should be furnished to the Veteran and his representative, and they should be afforded a reasonable opportunity for response. 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). _________________________________________________ H. SEESEL 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) (2017).