Citation Nr: 1801410 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 07-28 603 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent disabling for service-connected residuals of a left knee injury. 2. Entitlement to automobile and adaptive equipment or for adaptive equipment only. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and her two sisters ATTORNEY FOR THE BOARD N. Whitaker, Associate Counsel INTRODUCTION The Veteran had honorable active duty service in the United States Air Force from August 1974 to June 1978. This matter comes before the Board of Veterans' Appeals (Board) from a February 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia denying, among other issues, the issues currently on appeal. The RO in Philadelphia, Pennsylvania currently has jurisdiction over the Veteran's claims. This case was previously before the Board in September 2009 and was remanded in order to afford the Veteran a hearing. The Veteran subsequently provided testimony that included the issues currently on appeal in March 2010. The Veteran was notified in an April 2017 letter that the Veterans Law Judge that conducted this hearing was no longer employed with the Board. She was informed that she had the right to request a new hearing before a new Veterans Law Judge by submitting such a request within 30 days of receipt of this letter. The Veteran has not requested that she be scheduled for a new hearing, and as such, the Board may proceed with the issues currently on appeal. This case was previously before the Board in July 2017. Pursuant to the Board's remand decision, the issues of entitlement to an evaluation in excess of 10 percent disabling for the Veteran's service-connected residuals of a left knee injury and to automobile and adaptive equipment or for adaptive equipment only were remanded for additional development, to include scheduling a VA examination. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Regrettably, an additional remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2017). In this case, the Veteran contends that she is entitled to an evaluation in excess of 10 percent disabling for her service-connected residuals of a left knee injury. She also asserts entitlement to automobile and adaptive equipment or for adaptive equipment only. The Board notes that a request to schedule the Veteran for VA examination to assess the nature and current severity of her service-connected residuals of a left knee injury was submitted in July 2017. A C & P appointment note, dated early August 2017, indicated that attempts to reach the Veteran by telephone to confirm scheduling of the requested examination were unsuccessful and there is no indication that the examination was ever scheduled. In an August 2017 Appellate Brief, the Veteran's representative asserts that the Veteran is entitled to a new examination and noted the RO's failure to comply with the Board's remand directives. Again in November 2017, the Veteran's representative submitted an Appellate Brief asserting that the Veteran had good cause for failing to respond or appear for a VA examination as she had been hospitalized. In fact, a VA treatment note, dated August 2017, indicated that the Veteran received in-patient treatment over a four day period in early August 2017. Having reviewed the evidence of record, the Board agrees that an additional attempt should be made to schedule the Veteran for a VA examination so that an opinion regarding the nature and current severity of her service-connected residuals of a left knee injury may be provided. The Board notes that VA's duty to assist includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A (d) (West 2014). It is also noted, however, that "the duty to assist is not a one-way street." See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran is obliged to cooperate in the development of her pending claim, to include keeping the VA apprised as to any changes which impact the adjudication process or any factors or issues which require consideration in scheduling a new examination. Id. The Veteran is, therefore, notified that she is expected to attend any future scheduled examination(s) unless there is a showing of good cause. When a Veteran, without good cause, fails to report for an examination scheduled in conjunction with the claim for increase, the claim for increase may be denied. See 38 C.F.R. § 3.655 (b) (2017). Regarding the Veteran's claim of entitlement to automobile and adaptive equipment or for adaptive equipment only, the Board's consideration of this issue depends on whether the Veteran's service-connected left knee condition results in the loss of use of her foot. Because that issue is being remand, these claims are inextricably intertwined. Accordingly, adjudication of this claim will be deferred until further development of the inextricably intertwined issue is completed. Gurley v. Peake, 528 F.3d 1322 (Fed. Cir. 2008) (noting that remand of inextricably intertwined claims was warranted for reasons of judicial economy even in absence of administrative error); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (providing that two or more issues are inextricably intertwined if one claim could have significant impact on the other). Accordingly, the case is REMANDED for the following action: 1. An additional attempt to schedule the Veteran for a VA examination to assess the nature and current severity of her service-connected left knee disability should be made. If the Veteran fails to appear for any scheduled examination without showing good cause, the AOJ should associate with the claims file details of all attempts taken to schedule the Veteran for the requested examination(s). 2. Schedule the Veteran for an appropriate VA examination to determine the current severity of her service-connected left knee disability. The Veteran's claims file and a copy of this remand must be reviewed by the examiner and the examination report must indicate that these items were reviewed in conjunction with the scheduled examination. All indicated studies and testing must be conducted, and all pertinent symptomatology must be reported in detail. The examiner should address the following: (a) Range of motion testing must be performed for both flexion and extension and all results recorded in the examination report. (b) The examiner should identify any objective evidence of pain, and the degree at which pain begins. (c) The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If it is not feasible to do so to any degree of medical certainty without resorting to speculation, then the examiner must provide an explanation for why this is so. (d) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use 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 it is not feasible to do so to any degree of medical certainty without resorting to speculation, then the examiner must provide an explanation for why this is so. (e) The range of motion of the Veteran's left knee should be tested actively and passively, in weight bearing and non-weight bearing, and after repetitive use. 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 this is so; (f) The examiner should indicate whether there is evidence of additional impairment in addition to limitation of motion, such as instability, locking or subluxation. (g) Finally, the examiner should opine as to whether the Veteran's service-connected left knee disability is of such severity as to result in a loss of use of the left foot. A complete rationale must be provided for all opinions offered. If any opinion cannot be offered without resorting to mere speculation, the examiner should provide a full explanation as to why this is the case and identify what, if any, additional evidence or information might allow for a more definitive opinion. 3. Then re-adjudicate the Veteran's claims. If the benefits sought on appeal are not granted to the Veteran's satisfaction, a SSOC should be issued to the Veteran and his representative and they should be afforded the requisite opportunity to respond before the case is returned to the Board for further appellate action. 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). _________________________________________________ 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).