Citation Nr: 1801925 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 09-33 813 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the left knee. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Eric Struening, Associate Counsel INTRODUCTION The Veteran had active military service from June 1976 to June 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In April 2011, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In a November 2011 decision, the Board found that the issue of entitlement to a TDIU was raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board also remanded the case for additional development. On remand, in a September 2017 rating decision, the issue of service connection for degenerative disc disease (claimed as any back condition), which had also been remanded in November 2011, was granted. Accordingly, it is no longer on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Pursuant to the November 2011 remand, the Veteran was afforded a VA examination in September 2017 to determine the severity of his service-connected left knee disability. However, the Board finds the opinion provided to be inadequate. Accordingly, a remand for a new VA examination is necessary to ensure compliance with the Board's instructions. See Stegall v. West, 11 Vet. App. 268 (1998); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran reported having flare-ups with his left knee and that his left knee pain is worse at the end of the week. The examiner indicated that during a flare-up, pain causes functional loss in his knee, but she was unable to estimate the additional range of motion loss because the Veteran could not demonstrate "how much he can move during flare-ups." Despite the acknowledgement that the Veteran experiences flare-ups and functional loss during flare-ups, the examination does not indicate any attempt by the examiner to ascertain information necessary to provide an opinion- i.e., frequency, duration, characteristics, severity, or functional loss-regarding the flares by alternative means. Sharp v. Shulkin, 29 Vet. App. 26 (2017). On remand, the new VA examination should include a discussion of the duration of the Veteran's flare-ups throughout the period on appeal and whether an examination could be provided during a flare-up to more completely assess the current limitation of motion and other functional effects or whether an opinion can be provided with consideration of the duration of any flare-ups. Additionally, in a November 2017 correspondence, the Veteran's representative suggested there are private treatment records that would warrant a higher evaluation for his left knee disability. As these records are likely to contain information pertinent to the matters at hand these records must be sought. The Board notes that the claim for TDIU is inextricably intertwined with the issue of entitlement to a rating in excess of 10 percent for a left knee disability being remand. See Harris v. Derwinski, 1 Vet. App. 180 (1991). There is also a question regarding the Veteran's employment history. On remand, the Veteran should be asked to submit a completed VA Form 21-8940, with a detailed work history and educational background. Accordingly, the case is REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers who treated the Veteran for his left knee disability not already associated with the record. After securing the necessary release, take all appropriate action to obtain these records, including any updated VA treatment records since June 2015 and the private treatment records referenced by the Veteran's representative in the November 2017 correspondence. 2. After completion of the foregoing, schedule the Veteran for an appropriate VA examination to reassess the severity of the service-connected left knee disability. The claims folder and all pertinent medical records should be made available to the examiner for review. All necessary diagnostic testing should be performed. The examiner must describe all impairment of the left knee disability disability, and make determinations regarding range of motion, including any additional functional impairment. The examinations must address active and passive motion, weight-bearing and nonweight-bearing information, as required by 38 C.F.R. § 4.59. 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. The examiner should specifically ask the Veteran to describe the factors that precipitate a flare-up and the frequency, duration, and severity of any flare-ups since November 2007. The examiner should use that information to comment on the functional limitations caused by pain and any other associated symptoms. Such comments should include whether there was additional limitation of motion following repetitive testing due to pain, weakness, fatigability, etc. Any determination concerning this functional loss should be expressed in degrees of additional range of motion loss. A detailed rationale is requested for all opinions provided. The examiner must provide a complete rationale for any opinion expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made, to include whether there are additional tests or information that might be sufficient to estimate such additional functional loss during flares. 3. The AOJ should also contact the Veteran and request that he submit a VA Form 21-8940, Application for Compensation Based on Unemployability, with a detailed educational and employment history. 4. After completing the above and all other appropriate action deemed necessary to develop the TDIU claim, to include obtaining any additional medical opinions, if needed, the AOJ should then review the record and re-adjudicate the claims. If any benefit remains denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran his representative opportunity to respond. The case should then be returned to the Board, if in order, for any further review. The appellant 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. §§ 5109B, 7112 (2012). _________________________________________________ M. E. LARKIN 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).