Citation Nr: 1800439 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 10-42 337 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for a service-connected left knee disability, to include traumatic arthritis. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Department of Veterans Affairs INTRODUCTION The Veteran served on active duty in the United States Air Force from October 1984 to June 1988. This case comes before the Board of Veterans' Appeals (the Board) from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In that decision, the RO denied the Veteran's claims for increased ratings and denied reopening of six service connection claims. In December 2013, the Veteran appeared at a Travel Board hearing at the RO in before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. In April 2015, the Board denied reopening the Veteran's claims for service connection, and remanded the increased ratings issues for further development. This case returned to the Board in March 2017. At that time the Board granted a disability rating of 40 percent, but no more, for the Veteran's claim for an increased rating for his lumbosacral disability. The Board also inferred the issue of entitlement to TDIU based on his statements, and remanded that claim and the claim for entitlement to an increased rating for a disability of the left knee for further development. The case has now 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 The development actions requested in the Board's March 2017 remand were not substantially completed. A remand by the Board confers on claimants, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). It imposes upon VA a concomitant duty to ensure substantial compliance with the terms of the remand. Accordingly, in the present case, the additional development specified in the Board's prior remand must be substantially completed prior to adjudication. The March 2017 remand instructed the AOJ to obtain a new examination to evaluate the current severity of the Veteran's left knee disability. As part of the remand instruction, the examiner was requested to assess the functional impairment caused by reported flare-ups. The examiner was also requested to report at what point any pain begins in range of motion testing. The examination report reflects that these items were not accomplished. The examination report notes the Veteran reports flare-ups, but only comments that the examination is neither consistent nor inconsistent with the examination because it was not conducted during a flare-up. It is insufficient to conclude that the requested opinion cannot be rendered without resorting to speculation based solely on the fact that the VA examinations were not performed during a flare-up. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In rendering the requested opinion, the examiner should derive his or her estimate from relevant sources within the claims file, including private treatment records and lay statements of the Veteran. Upon remand the examiner is requested to provide such an opinion and should review the claims file as necessary to provide said opinion. The examination report also notes that the Veteran has pain when weight bearing. However, the report does not note where that pain beings and if that pain causes any additional functional loss. Upon remand, the examination report should note any such limitation or functional loss observed. Finally, the Board notes that the issue of entitlement to a TDIU is inextricably intertwined with the claim for an increased rating. The determination of the TDIU will, in part, be based on the appropriate rating of the Veteran's left knee disability and any limitations noted in the examination to be accomplished upon remand. Therefore, the Board cannot adjudicate the Veteran's TDIU claim until the development requested for the increased rating claim is accomplished. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding private treatment records and VA records relevant to the Veteran's disabilities. 2. After undertaking the development listed above to the extent possible, schedule the Veteran for a VA examination to ascertain the current severity of his service-connected left knee disability. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted, and the results included in the examination report. The claims file, including a copy of this remand, should be reviewed by the examiner. In assessing the severity of the left knee disability, the examiner should test for pain on both active and passive motion and 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, he or she should clearly explain why that is so. The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare ups) and, to the extent possible provide an assessment of the functional impairment on repeated use or during flare ups. If feasible, the examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. The examiner should also specifically report at what point any pain begins, and at what point any pain causes any functional impairment, or whether there is any additional range of motion loss due to excess fatigability, incoordination, or flare-ups In rendering the above requested opinion, the examiner should derive his or her estimate from relevant sources within the claims file, including private treatment records and lay statements of the Veteran. It is insufficient to conclude that the requested opinion cannot be rendered without resorting to speculation based solely on the fact that the VA examinations were not performed during a flare-up. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The examiner must specifically determine whether the Veteran has recurrent subluxation or lateral instability, and characterize any such impairment as slight, moderate, or severe. Further, the examiner is requested to comment on the functional impairment caused solely by the Veteran's service-connected disabilities relative to his ability to engage employment-related activities. The supporting rationale for all opinions expressed must be provided. 3. Ensure completion of the foregoing and any other development deemed necessary, then readjudicate the issues that have been remanded. If the claim remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and an opportunity to respond. The Veteran 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 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). _________________________________________________ MICHAEL A. PAPPAS 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).