Citation Nr: 1803239 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-10 675A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 50 percent for depressive disorder. 2. Entitlement to a rating in excess of 20 percent for right knee traumatic arthritis. 3. Entitlement to a rating in excess of 20 percent for left knee traumatic arthritis / medial meniscus tear, status post arthroscopy time two. 4. Entitlement to a compensable rating for right knee traumatic arthritis, limitation of extension. 5. Entitlement to a compensable rating for left knee traumatic arthritis, limitation of extension. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD L. Pelican, Counsel INTRODUCTION The Veteran served on active duty in the Army from September 1986 to April 1991. The Veteran was awarded the Air Assault Badge and Army Achievement Medal, among other decorations. This case comes before the Board of Veterans' Appeals (the Board) from May 2011, February 2012, and March 2012 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. The Court further held that when evidence of unemployability is submitted during the pendency of a claim for an increased evaluation, the claim for TDIU is part and parcel of the claim for benefits for the underlying disability. Id. Here, the record reflects that the Veteran is currently employed. See August 9, 2016 psychiatry outpatient note. Thus, the Board finds that a claim for TDIU is not before the Board at this time. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Preliminarily, there appear to be outstanding records. The VA medical records added to VBMS on December 6, 2017 contain numerous references to non-VA care records that were scanned into VistA imaging but not made available in the claims file. See, e.g., July 31, 2017, October 31, 2017, November 17, 2017, and November 20, 2017 notations. It is unclear whether any of these scanned records are pertinent to the claims on appeal. Moreover, orthopedic surgery records from November 29, 2017 indicate the Veteran was being scheduled in the near future to receive knee injections. On remand, any VA medical records from November 30, 2017 to present should be associated with the claims file, as well as any non-VA records scanned into VistA imaging. The record also indicates the Veteran has received non-VA care for his knee disabilities from at least three providers, including from Northwest Florida Community Hospital, an unidentified sports medicine provider, and Dr. L. See November 16, 2015 medical treatment records and December 2, 2015 VA Orthopedic surgery note. Records from these providers have not been associated with the claims file; thus reasonable attempts must be made to obtain them. The Veteran was last afforded a psychiatric examination in March 2011, and a knee examination in June 2011. In a December 2017 brief, the Veteran's representative asserted that the recent examinations did not reflect the current nature of the Veteran's disabilities. The representative also requested the Veteran be provided notice of any evidence not previously reflected in a Statement of the Case and the opportunity to respond to it. The Board observes that while over three years' worth of VA medical records were associated with the claims file since the issuance of the March 2014 Statement of the Case, a Supplemental Statement of the Case was not subsequently issued. In light of these circumstances and given the presence of outstanding records, the Veteran should be afforded new VA examinations for his claimed disabilities. Accordingly, the case is REMANDED for the following actions: 1. Take appropriate action to obtain VA treatment records from November 2017 to present, as well as any non-VA treatment records that were scanned into VistA Imaging. 2. With appropriate authorization from the Veteran, obtain and associate with the record any outstanding private treatment records identified by him as pertinent to his claims, including from Northwest Florida Community Hospital, the unidentified sports medicine provider, and Dr. L. 3. Afford the Veteran a VA examination by an appropriate examiner to determine the current nature and severity of his psychiatric disorder. The electronic claims file should be forwarded to the examiner for review. 4. Schedule the Veteran for a VA orthopedic examination to determine the severity of his service-connected right and left knee disabilities. The electronic claims file should be forwarded to the examiner for review. The examiner should be directed to elicit a complete history from the Veteran. All indicated studies should be performed. The examiner should test range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so. The examiner should report the Veteran's range of motion in terms of degrees in terms of flexion and extension, and should comment on any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology, e.g., muscle spasm, and is evidenced by his visible behavior, e.g., facial expression or wincing, on pressure or manipulation. The examiner should specify the point during range of motion that the Veteran experiences pain. The examiner's report should include a description of the above factors that pertain to functional loss due to the knee disabilities that develops on repetitive use or during flare-up, and to the extent possible offer that description in terms of degrees of range of motion. The examiner should elicit from the Veteran a complete history of any flare-ups of his knee disabilities. In so doing, the examiner should inquire as to the frequency, duration, characteristics, severity, and functional loss during periods of flare-ups of the Veteran's knee disabilities since May 2010. The examiner should describe the additional loss, in degrees, if possible. In rendering the above requested opinion, the examiner should derive his or her estimate from relevant sources within the claims file, including private treatment records and lay statements of the Veteran. If the examiner is unable to do so, the examiner should indicate that all procurable data was considered (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. It is insufficient to conclude that the requested opinion cannot be rendered without resorting to speculation based solely on the fact that the VA examinations were not performed during a flare-up. 5. Review the examination reports for compliance with the Board's directives. Any corrective action should be undertaken prior to recertification to the Board. 6. Thereafter, readjudicate the issues on appeal. If any determination remains unfavorable to the Veteran, he should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran should be afforded the applicable time period in which to respond. 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). These claims 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). _________________________________________________ K. J. ALIBRANDO 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).