Citation Nr: 1753462 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 10-14 462 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for service-connected status post right knee replacement. 2. Entitlement to an evaluation in excess of 10 percent for service-connected left knee meniscus repair with osteoarthritis in the lateral and patellofemoral compartments. 3. Entitlement to an evaluation in excess of 10 percent for service-connected right ankle avulsion fracture residuals. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran had honorable active service in the United States Army from September 1968 to September 1970. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In that decision, the 30 percent evaluation for the service-connected right total knee replacement was continued; the 10 percent evaluation for the service-connected left knee disability was continued; the 10 percent evaluation for the service-connected right ankle disability was continued; and entitlement to TDIU benefits was denied. The Veteran appealed the underlying decision in a Notice of Disagreement received in April 2009. In an August 2014 statement, the Veteran requested a hearing before the Board at a local VA facility; however, in a July 2015 statement, he requested a videoconference hearing. Thereafter, the Veteran was scheduled for a videoconference hearing in mid-September 2016; however he failed to appear for the hearing. He did not submit a statement of good cause for his failure to appear and he has not requested that he be scheduled for a new hearing. Therefore, the hearing request is withdrawn. See 38 C.F.R. § 20.704(e) (2017). This case was most recently before the Board in January 2017, when the Board remanded the issues for further development. The record before the Board consists solely of the Veteran's electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The U. S. Court of Appeals for Veterans Claims (Court) has held that a VA examination of the joints must, wherever possible, include range of motion testing, "for pain on both active and passive motion [and] in weight-bearing and nonweight-bearing." In addition, if applicable the examiner must provide range of motion findings for the "opposite undamaged joint." The Court further held that that if for some reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so. Correia v. McDonald, No. 13-3238, 2016 WL 3591858 (Vet. App. July 5, 2016). The Veteran was most recently afforded an examination to determine the degree of severity of his right knee, left knee, and right ankle disabilities in March 2017. The examiner indicated that he was unable to test range of motion of the Veteran's knees or right ankle due to his dementia and/or Alzheimer's, as the Veteran was not able to follow verbal commands. The examiner did not perform any of the required range of motion testing or provide an adequate explanation as to why certain testing was not completed. While the examiner noted that the Veteran was unable to perform active range of motion due to an unrelated health issue, it is not clear to the Board whether he performed testing of the range of motion of the knees or right ankle for passive motion or non-weight bearing, as the examiner did not provide an estimation of loss of range of motion in degrees, however he indicated that the Veteran was unable to actively move his knees and ankles. Thus, the examination report is not adequate for rating purposes. Therefore, the Board finds that the originating agency failed to substantially comply with the January 2017 remand directives. Such noncompliance is error on the part of the originating agency. Moreover, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the claim must be remanded for an adequate VA examination. Further, the outcome of the TDIU claim is in part dependent on the outcome of the increased rating claims on appeal. Therefore, the TDIU claim is inextricably intertwined with the increased rating claims and must also be remanded. Harris v. Derwinski, 1 Vet. App. 180 (1991). Since a remand is required, development to obtain any outstanding records pertinent to the Veteran's claim should also be completed while the case is in remand status. Accordingly, the case is REMANDED to the RO or the Appeals Management Center (AMC) in Washington, D.C. for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). 2. Thereafter, scheduled the Veteran for a VA examination by an examiner with sufficient expertise to determine the current degree of severity of the Veteran's service-connected bilateral knee and right ankle disabilities. The AOJ should ensure that the examiner provides all information required for rating purposes. In particular, the examiner should be directed to perform range of motion testing to determine the extent of limitation of motion due to pain on active motion and passive motion, and with weight-bearing and without weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. A complete rationale must be provided for any and all opinions provided, and if a required opinion cannot be provided without resort to mere speculation the examiner should explain why this is the case and identify what, if any, additional evidence would allow for a more definitive opinion. 3. The AOJ should ensure that the Veteran is provided with adequate notice of the date and place of all scheduled examinations. A copy of all notifications, including the address where the notice was sent, must be associated with the record if the Veteran fails to report for any examination. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause may have adverse effects on his claim. 4. The AOJ should also undertake any additional development deemed necessary. 5. Then, the AOJ should readjudicate the Veteran's claims. If any benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is recertified for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran and his representative need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND 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). _________________________________________________ B. MULLINS 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).