Citation Nr: 1802941 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 13-24 996 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for a low back disability. 2. Entitlement to a rating in excess of 10 percent for a left knee disability. 3. Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Saindon, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1963 to December 1966. These matters come to the Board of Veterans' Appeals (Board) from September 2011, March 2012, and August 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office in Houston, Texas. The Veteran testified before the undersigned Veterans Law Judge during a video conference hearing in February 2015. The transcript is of record. The Board previously remanded these matters in June 2015 for further development. The case has returned for adjudication. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran was most recently afforded a VA examination for his back and knee disabilities in August 2015. Thereafter, the Court of Appeals for Veterans Claims issued Correia v. McDonald, 28 Vet. App. 158 (2016) that held, in pertinent part, that "[t]he final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities." This section states that joints "should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." 38 C.F.R. § 4.59. The August 2015 examiners did not state that the Veteran was tested on both active and passive motion and in weight-bearing and non-weight bearing. The earlier examinations also lacked such findings. The Veteran must be afforded a new examination to correct this deficiency. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Additional information in the form of the Veteran's vocational rehabilitation file was associated with the claims folder since the last statement of the case. The Veteran has not waived Regional Office consideration of these documents and they may have some bearing on his claim for TDIU. The Veteran has also been recently service connected for depression, and because the depression is secondary to the back disability they should be considered together for purposes of evaluating TDIU and the Veteran now meets the schedular requirements of at least 70 percent disabled with one disability at 40 percent or more. The TDIU claim should be readjudicated. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination by an appropriate medical professional to address the severity of the Veteran's knee and back disabilities. The examiner must review the record and perform the appropriate diagnostic testing necessary to properly complete the requested examination. Testing must include range of motion testing done under active and passive motion and in weight-bearing and non-weight bearing. The presence of any instability of the left knee should be assessed as being slight, moderate, or severe. If instability is not observed, the examiner should reconcile such a finding with the observations made during the August 2015 examination. A notation must be made to indicate the types of testing done to ensure compliance with this directive. If the examiner is unable to conduct the required testing, he or she should explain why that is so. A rationale for all requested opinions shall be provided. If the examiner determines that an opinion cannot be rendered without result to mere speculation, then it should be clear in the examiner's remarks whether it cannot be determined from current medical authority or if an opinion could be rendered if additional facts were known. If additional facts are needed, the examiner shall state what facts, if known, would impact his or her ability to render an opinion and how. Simply stating that an opinion cannot be provided without resort to mere speculation is not acceptable without a detailed reason as to why. 2. After completion of the above, readjudicate the Veteran's claims. The AOJ is reminded that the Veteran's depression (service connected as secondary to the back) and back disability they should be considered together for purposes of evaluating TDIU and the Veteran now meets the schedular requirements of at least 70 percent disabled with one disability at 40 percent or more. If any claim remains denied, issue a supplemental statement of the case to the Veteran and his representative and allow an appropriate period to respond. Then return the claim to the Board for further adjudication 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. HERMAN 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).