Citation Nr: 1759942 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 13-15 565 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an increased rating in excess of 10 percent for left knee strain. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Sinckler, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1971 to October 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Veteran testified at a video conference board hearing before the undersigned Veterans Law Judge (VLJ) in September 2016. A transcript is of record. In February 2017, the Board remanded this issue in part for further development, including for the provision of a new VA examination that complied with the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016). That development having been addressed, the case has since returned to the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, another remand is required in this case. While the Board sincerely regrets the delay, the Veteran's claim for entitlement to an increased rating for a left knee strain and a TDIU is again remanded in accordance with VA's duty to assist. Such development is necessary to aid the Board in making an informed decision, and will help ensure that the claim is afforded every consideration. In February 2016 the Board, in part, remanded the Veteran's increased rating claim for a left knee strain for the provision of a VA examination that complied with Correia. See February 2017 Board Decision. However, the March 2017 VA knee and lower leg examination report did not include range of motion testing in passive motion, weight-bearing, and nonweight-bearing, nor did it include range of motion measurements of the opposite undamaged joint. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand of the Board or the Court is not complied with, the Board errs as a matter of law when it fails to ensure compliance). In this case, the Board finds an additional VA orthopedic examination is needed to ascertain if there is additional motion loss during passive motion, weight-bearing, and nonweight-bearing for the left knee. Correia, 28 Vet. App. 158. Further, in a recent case, the Court of Appeals for Veterans Claims (the Court) indicated that "the VA Clinician's Guide makes explicit what DeLuca [v. Brown, 8 Vet. App. 202 (1995)] clearly implied," that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, as opposed to a limitation of the individual examiner (lack of expertise, insufficient information, or unprocured testing). Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board also observes that the Sharp holding, concerning any inability to estimate range of motion loss in terms of degrees applies to pain due to flare-ups as noted in the March 2017 VA C&P examination report. The March 2017 musculoskeletal VA examination report does not include an adequate explanation for why an estimate could not be provided on the functional impairment caused by pain during a flare-up. Sharp, supra. See also VA's Clinician Guide, Ch. 11. Accordingly, remand for another examination is required. The Board notes that the Veteran's claim for a TDIU is inextricably intertwined with the grant of an increased rating for his left knee disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). As such, consideration of the claim for TDIU must be deferred pending the resolution of the increased rating for a left knee strain. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records dated from December 2016 and associate them with the claims file. 2. After the above has been completed, arrange for a new VA examination to assess the current severity of the Veteran's left knee disorder. The Veteran's entire claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner. The examination report must reflect that such a review was undertaken. The examination should include any necessary diagnostic testing or evaluation. Range of motion testing in accordance with Correia: In the examination report, the examiner must include all of the following: (a) Active range of motion testing results. (b) Passive range of motion testing results. (c) Weightbearing range of motion testing results. (d) Non-weightbearing range of motion testing results. If the examiner is unable to conduct one or more of the above tests or finds that it is unnecessary, the examiner must provide an explanation. In any event, the type of test performed (i.e. active or passive, weightbearing or nonweightbearing), must be specified. Flare-ups (Sharp): The examiner must elicit as much information as possible from the Veteran regarding the severity, frequency, and duration of flare-ups, their effect on functioning, and precipitating and alleviating factors. If the examination is not performed during a flare-up, the examiner must provide an estimate of additional loss of range of motion during a flare-up. If the examiner is unable to provide an estimate of additional loss of motion during a flare-up, the examiner must provide a specific explanation as to why the available information, including the Veteran's own statements, is not sufficient to make such an estimate. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, whether favorable or unfavorable, and citing the objective medical findings leading to the conclusions. 3. Then, review the medical examination report to ensure that it adequately responds to the above instructions, including that it provides an adequate explanation in support of the opinion stated. If the report is deficient in this regard, return the case to the examiner for further review and discussion. 4. After the above development is completed, and any other development that may be warranted based on any additional information or evidence received, readjudicate the claims on the merits. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ P.M. DILORENZO 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).