Citation Nr: 1801043 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 13-31 072 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased disability rating for arthritis of the right knee, currently evaluated as 10 percent disabling prior to April 30, 2014, and 20 percent disabling from April 30, 2014 (with the exception of a temporary total (100 percent) convalescence rating pursuant to 38 C.F.R. § 4.30 from July 20, 2009 through September 30, 2009). 2. Entitlement to an increased disability rating for arthritis of the left knee, currently evaluated as 10 percent disabling (with the exception of a temporary total (100 percent) convalescence rating pursuant to 38 C.F.R. § 4.30 from November 16, 2009 through January 31, 2010 and from March 5, 2012 through June 30, 2012). 3. Entitlement to an increased disability rating for degenerative disc disease of the lumbosacral spine currently evaluated as 10 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Attorney INTRODUCTION The Veteran served on active duty from October 1975 to July 1994. These matters come before the Board of Veterans' Appeals (Board) on appeal of August 2010 and October 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In a May 2014 rating decision, the Agency of Original Jurisdiction (AOJ) increased the rating for the Veteran's right knee arthritis to 20 percent, effective April 30, 2014. As the increase did not satisfy the appeal in full, the issue remains on appeal and has been characterized as shown on the title page of this decision. See AB v. Brown, 6 Vet. App. 35 (1993). The Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability (TDIU) due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that the disabilities at issue render him unemployable. Accordingly, the Board concludes that a claim for TDIU has not been raised. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks higher ratings for his service-connected right knee arthritis, left knee arthritis and degenerative disc disease of the lumbosacral spine. The Board finds that the matters must be remanded for further development before a decision may be made on the merits. The Veteran was most recently provided an examination as to his service-connected right knee, left knee and lumbosacral spine in August 2010. In the November 2017 Appellant's Brief, the Veteran's representative stated that the Veteran's bilateral knee disability and lumbosacral spine disability have worsened since the August 2010 VA examination. In addition, in a March 2014 statement the Veteran's representative stated that the Veteran's August 2010 VA examination is too stale for evaluative purposes and a remand is necessary to determine the current nature and severity of his service-connected disabilities. In light of the representative's statements of a possible worsening of the Veteran's service-connected bilateral knee disabilities and service-connected lumbosacral spine disability a new VA examination is required so that the current severity of the Veteran's service-connected disabilities may be determined. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination); Weggenmann v. Brown, 5 Vet. App. 281 (1993) (VA has a duty to provide an examination when there is evidence that the disability has worsened since the previous examination). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected right and left knee disabilities and service-connected lumbosacral spine disability. The record and a copy of this remand must be made available to and reviewed by the examiner. The examination must include all physical and diagnostic testing deemed necessary by the examiner in conjunction with this request. The examiner should report all manifestations related to the Veteran's service-connected right and left knee disabilities and service-connected lumbosacral spine disability. The examiner must address the following: a) The examiner should record the results of range-of-motion testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing for the right and left knees and lumbosacral spine. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly explain why that is so. In recording the ranges of motion for the Veteran's knees and lumbosacral spine, the examiner should note whether, upon repetitive motion, there is any pain, weakened movement, excess fatigability, or incoordination of movement, and whether there is likely to be additional functional loss due to pain on use, weakened movement, excess fatigability, or incoordination over time. If there is no pain, no limitation of motion, and/or no limitation of function, such facts must be noted in the report. b) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use over time or during flare-ups. 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, if possible. If the Veteran indicates that he is not currently experiencing a flare-up at the time of the examination, the examiner should estimate any additional functional loss during flare-ups or on repeated use, if feasible. If it is not feasible to determine, even by estimation, the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why this is so. The examiner must provide a complete rationale for each opinion provided. 2. After completion of the above, readjudicate the issues on appeal based on a review of the expanded record, including the evidence entered since the most recent supplemental statement of the case. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. A reasonable period should be allowed for response before the appeal is returned to the Board. The Veteran has the right to submit additional evidence and argument on 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. §§ 5109B, 7112 (2012). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).