Citation Nr: 1756713 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 10-07 184 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent prior to September 8, 2015, and greater than 30 percent disabling thereafter (excluding the period of 100 percent from September 8, 2015 to October 31, 2016) for right knee injury with degenerative joint disease, status-post total replacement. 2. Entitlement to a disability rating in excess of 30 percent for status-post total left knee replacement. 3. Entitlement to a disability rating in excess of 20 percent for residuals of post-operative left clavicle fracture (non-dominant) with degenerative joint disease. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to November 1, 2016. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD K. Wysokinski, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1977 to August 1984. These matters initially came to the Board of Veterans' Appeals (Board) on appeal from a January 2009 from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The appeal was most recently before the Board in September 2015 when it was remanded for additional development, including obtaining proper Social Security Administration (SSA) records. A review of the file shows that these records have since been obtained. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board sincerely regrets the additional delay that will result from remanding this claim again, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Veteran's knee rating claims must be remanded so as to afford the Veteran a proper examination that addresses the Veteran's flare-ups. In the course of the most recent VA examination conducted in February 2017, the examiner indicated that they could not provide range of motion estimates for the Veteran's knees when the Veteran is experiencing a flare up without resulting to speculation because the Veteran was not being examined while experiencing a flare up. Recently, the Court of Appeals for Veterans' Claims in Sharp v. Shulkin, 29 Vet. App. 26 (2017) addressed the adequacy of a VA examiner's opinion when providing an opinion as to additional functional loss during flare-ups of a musculoskeletal disability, pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must "elicit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why she could not do so." See Sharp, at 35. Consequently, the most recent VA examination is inadequate for rating purposes as it does not provide the required information and fails to explain why the Veteran's reports of his flare-ups cannot be used to estimate the range of motion since it is explicitly contemplated that the Veteran is competent to inform as to the impact of his flare ups for expert consideration. A remand is also necessary to obtain further development with respect to the Veteran's TDIU claim. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable at 40 percent or more, and there is sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The adjudication of the Veteran's request for TDIU is inextricably intertwined with the other remanded claims, since the Veteran's rating might determine whether schedular or extraschedular TDIU is appropriate for consideration earlier than it is currently assigned. Therefore, the Board finds that adjudication of the TDIU request must also be placed on hold until the AOJ adjudicates the other remanded claims and then the TDIU request must be readjudicated. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As this matter is being remanded, all outstanding VA medical records should be obtained. Sullivan v. McDonald, 815 F.3d 786 (2016). Moreover, the Veteran should be given an opportunity to identify any private medical records he would like considered in connection with his appeal. 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain all outstanding VA medical records. 2. Ask the Veteran to identify any private medical care providers who treated him for his knee disabilities. After securing any necessary authorization, obtain records from any identified providers. 3. Schedule the Veteran for any appropriate VA examinations to determine the current nature, severity and occupational impact of his knee disabilities. The claims file should be made available to and reviewed by the examiners and all necessary tests should be performed. All findings should be reported in detail. The appropriate examiner should identify knee pathologies found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. If appropriate, full range of motion testing must be performed where possible. Any joint(s) involved should be tested in both active and passive motion, in weight-bearing and non weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. If appropriate, the examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. If appropriate, the examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his knee symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). The examiner should note that the VA CLINICIAN'S GUIDE requires the examiner to estimate the range of motion "per [the] Veteran." See VA CLINICIAN'S GUIDE at Ch. 11. 4. After completing the above development, including any additional development that may be warranted, including any needed documentation for TDIU earlier effective date, readjudicate the appeal. 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). _________________________________________________ Cynthia M. Bruce 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).