Citation Nr: 1803037 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 13-11 802 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to a rating in excess of 30 percent for a left knee disability prior to July 5, 2011; a rating in excess of 60 percent from September 1, 2012, to February 16, 2014; and a rating in excess of a 60 percent, as of April 1, 2015. 2. Entitlement to a rating in excess of 10 percent for a right knee disability. 3. Entitlement to a rating in excess of 10 percent for muscle hernia of the left thigh with scar. 4. Entitlement to a rating in excess of 10 percent for a lumbosacral spine disability. 5. Entitlement to a rating in excess of 10 percent for a left hip disability. 6. Entitlement to a compensable rating for a left hip disability, based on limitation of flexion. 7. Entitlement to a compensable rating for a left hip disability, based on limitation of rotation. 8. 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 Zi-Heng Zhu INTRODUCTION The Veteran served on active duty from February 1969 to December 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal of rating decisions from December 2010, May 2013, and January 2015, of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran filed an increased rating claim for a service-connect left knee disability which was rated 30 percent at the time of the initial claim. That claim was initially denied in a December 2010 rating decision. Subsequently, and during the appeals period, the Veteran underwent a total knee arthroplasty (TKA) in 2011, and filed a claim for a temporary total disability rating based on surgical convalescence. A May 2013 rating decision assigned a temporary 100 percent rating from July 5, 2011, to August 31, 2012, and a 60 percent rating as of September 1, 2012. In 2014, the Veteran's left knee required a revision of the TKA, and was again assigned a temporary 100 percent rating from February 17, 2014, to March 31, 2015, and 60 percent disability rating as of April 1, 2015. Therefore, the Board finds that the two temporary total disability ratings period are considered full grants, but the claim for increased rating for the periods when a 100 percent rating was not assigned remain on appeal before the Board. REMAND The Board finds that further evidentiary development is necessary before the Board can adjudicate the claims on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claims. With regard to the claim for increased ratings for left and right knee disabilities, remand is required to properly develop evidence. Following the issuance of a January 2015 statement of the case, and after the certification of this appeal to the Board, new evidence pertinent to the Veteran's left knee disability was added to the record that was not considered by the AOJ in any subsequent supplemental statement of the case. That new evidence consists of VA and private treatment records and VA examinations from May 2017 assessing the nature and severity of both service-connected knee disabilities. Pertinent evidence will be first reviewed at the Agency of Original Jurisdiction so as to not deprive the claimant of an opportunity to prevail with a claim at that level and a supplemental statement of the case must be issued. 38 U.S.C. § 7104(a) (2012); 38 C.F.R. §19.31 (b)(1) (2017); Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Further, when evidence is received prior to the transfer of a case to the Board, a supplemental statement of the case must be issued as provided in 38 C.F.R. §19.31 unless the additional evidence is duplicative or not relevant to the issue on appeal. 38 C.F.R. §19.37(a) (2017). There is no legal authority for a claimant to waive, or the RO to suspend, that requirement. On remand, a supplemental statement of the case which considers the additional evidence of record received since the January 2015 statement of the case must be issued. With regard to the claims for increased ratings for left thigh, hip, and back disabilities, the Veteran was last provided a VA examination to assess the nature and severity of those disabilities in April 2013 and November 2014, more than three years ago. The Board recognizes that, generally, the mere passage of time is not a sufficient basis for a new examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). However, claims of a worsening condition regarding these conditions have been set forth by the Veteran since that examination. Specifically, during testimony before the undersigned, the Veteran, through his representative, explicitly asserted that all these disabilities had become worse, with decreased motion, increased pain, and limitation of function. When available evidence is too old for an adequate evaluation of the current condition, VA's duty to assist includes providing a more current examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). The Board finds that not only is the last examination remote, but the examination appears to no longer indicate the Veteran's current level of disability and functional loss. Consequently, after all outstanding medical records are associated with the claims file, a more contemporaneous examination is needed to rate the Veteran's claims for increased ratings for thigh, hip, and back disabilities. Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). Remand is also required regarding the claim of entitlement to TDIU. Since this increased rating claim is being remanded, the Board finds that it would be potentially prejudicial to the Veteran for the Board to consider this derivative claim prior to the determination of such other claim. Bernard v. Brown, 4 Vet. App. 384 (1993). Specifically, because the issues of entitlement to increased ratings will have a substantial effect on the merits of a claim for TDIU, the claim for TDIU is inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Obtain all VA treatment medical records not already of record. 2. After obtaining appropriate authorization, obtain any private treatment records identified by the Veteran that are not already of record. 3. Then, schedule the Veteran for a VA joints examination of the bilateral knee disabilities. The examiner must review the claims file and should note that review in the report. Any studies or tests deemed necessary should be performed. The examiner should provide a complete rationale for any opinions provided. The examiner is asked to report on the nature and severity of both knee disabilities. The examination must include range of motion testing expressed in degrees for active motion, passive motion, weight-bearing, and nonweight-bearing. Correia v. McDonald, 28 Vet. App. 158 (2016). The examiner is also specifically asked to describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, incoordination, or on flare up. If the Veteran describes flare-ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. The examiner should state whether there is instability of either knee, and if so, the severity of any recurrent lateral instability. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the service-connected disabilities. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should opine what type of work would be possible and what accommodations would be required due to the service-connected disabilities. 4. Then, schedule the Veteran for a VA examination for service-connected left hip and left thigh disabilities. The examiner must review the claims file and should note that review in the report. All testing deemed necessary should be performed. A complete rationale for all opinions should be provided in the examination report. The examiner is asked to provide opinions regarding the nature and severity of the claimed service-connected disabilities, to include a current diagnosis. The examination must include range of motion testing expressed in degrees for active motion, passive motion, weight-bearing, and nonweight-bearing, for both the left and right hip. Correia v. McDonald, 28 Vet. App. 158 (2016). The examiner is specifically asked to describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, incoordination, or on flare up. If the Veteran describes flare-ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. 5. Then, schedule the Veteran for a VA spine examination. The examiner must review the claims file and should note that review in the report. Any studies or tests deemed necessary should be performed. The examiner should provide a complete rationale for any opinions provided. The examiner is asked to report on the nature and severity of the back disability. The examination must include range of motion testing expressed in degrees for active motion, passive motion, weight-bearing, and nonweight-bearing. Correia v. McDonald, 28 Vet. App. 158 (2016). The examiner is also specifically asked to describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, incoordination, or on flare up. If the Veteran describes flare-ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically. 7. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs