Citation Nr: 1753032 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 10-44 090 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for limitation of flexion of the right knee. 2. Entitlement to an evaluation in excess of 20 percent for degenerative joint disease of the right knee with limitation of extension. 3. Entitlement to an initial evaluation in excess of 20 percent for instability of the right knee. 4. Entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Grzeczkowicz, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2010 rating decision of the Columbia, South Carolina, regional office (RO) of the Department of Veterans Affairs (VA). This decision increased the evaluation for limitation of extension of the right knee to 20 percent effective from the date of the Veteran's claim; decreased the evaluation for limitation of flexion of the right knee from 20 percent to zero percent; and established service connection for instability of right knee with an evaluation of 10 percent. The 20 percent evaluation for limitation of flexion of the right knee was restored by a March 2010 rating decision. A May 2011 rating decision increased the initial evaluation for the Veteran's right knee instability to 20 percent. The Veteran offered testimony at an April 2012 hearing at the RO before the undersigned acting Veterans Law Judge. A transcript of this hearing is in the claims folder. In November 2013 the Board remanded the issues for further development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that additional development is needed before the claims for increased ratings for the right knee can be decided. In Correia, the United States Court of Appeals for Veterans Claims (Court) elaborated on VA examination requirements with respect to joint testing for pain pursuant to 38 C.F.R. § 4.59. Specifically, the Court held that VA examinations for musculoskeletal claims must include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint, as well as a determination as to whether a musculoskeletal disability involving joint or periarticular pathology is painful, whether or not the particular disability is evaluated under a diagnostic code predicated on range of motion measurements. Id. The Veteran was afforded a VA examination in April 2016. The examination report reflects that the Veteran reported he had stiffness and pain at the right knee. He reported that he used medication to manage his pain. The examiner noted that the Veteran had pain with motion and that the pain did result in functional loss. While the examiner indicated that the examination was not being conducted during a flare-up, the examiner stated that flare-ups caused functional loss due to pain. Muscle strength was normal in the right knee. Stability testing was noted as mild anterior instability in the right knee, all others were normal. The examiner diagnosed right knee joint osteoarthritis and right knee instability. The examiner provided range of motion measurements for the right knee flexion and extension without providing range of motion measurements of the opposite undamaged joint or commenting on pain for passive, active, weight-bearing, or nonweight-bearing motion. However, this does not meet the criteria noted in Correia. Thus, a remand for a new examination is necessary. As the Veteran's claim for TDIU is impacted by the outcome of his increased rating claims for a right knee disability, the TDIU claim is "inextricably intertwined" with the other claims. See Smith (Daniel) v. Gober, 236 F. 3d 1370, 1373 (Fed. Cir. 2001) (where the facts underlying separate claims are "intimately connected," the interest in judicial economy and avoidance of piecemeal litigation require the claims to be adjudicated together). Therefore, the determination of whether the Veteran is entitled to an increased rating for his right knee disabilities must be made prior to deciding his derivative TDIU claim. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for VA examination by an examiner with appropriate expertise to determine the nature and current severity of the Veteran's service-connected right knee disabilities. In particular, the examiner must test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing, for both joints in question. If the examiner is unable to conduct any aspect of the required testing or concludes that it is not necessary, e.g., non-weight-bearing, the examiner should clearly explain why that is the case. The electronic claims file must be made accessible to the examiner for review, and such review should be noted in the examination report. Following a review of the claims file and medical history, the VA examiner should: a. Describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion should be noted. If the Veteran describes flare-ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. To the extent possible, all losses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically. b. Indicate whether there is recurrent subluxation or instability of the right knee, and if so, the severity of any recurrent subluxation or instability. If instability is unable to be tested, an explanation should be provided. c. Indicate whether there is any frequent episodes of "locking," pain, and effusion in the joints due to the injuries to the cartilage of the right knee. 2. Thereafter, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, issue a supplemental statement of the case and provide the Veteran and his representative with an opportunity to respond. Then return the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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). _________________________________________________ THOMAS H. O'SHAY 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).