Citation Nr: 1803277 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-12 817 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a rating in excess of 10 percent for left knee disability with degenerative joint disease, status post left knee arthroscopy, prior to July 28, 2017 (excluding the periods dated from February 23, 2012 through April 30, 2012 and August 12, 2013 through September 30, 2013, wherein 100 percent temporary total ratings were assigned) and a rating in excess of 20 percent thereafter. 2. Entitlement to an increased rating in excess of 10 percent for instability of the left knee. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to April 27, 2017. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD A. Vieux, Associate Counsel INTRODUCTION The Veteran had active service in the United States Navy from December 1976 to December 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In October 2017, the RO granted an increased disability rating of 20 percent for the left knee disability with degenerative joint disease, status post left knee arthroscopy, effective July 28, 2017. Because this increase does not constitute a full grant of the benefit sought, the higher evaluation issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). Further, the October 2017 rating decision granted service connection for instability of the left knee and assigned a 10 percent disability rating effective July 28, 2017. Accordingly, as the instability of the left knee is part and parcel of adjudication of entitlement to a higher disability rating for left knee disability with degenerative joint disease, status post left knee arthroscopy, the Board will also address the issue of entitlement to a rating in excess of 10 percent for instability of the left knee. In September 2017, the Veteran filed a claim for entitlement to a TDIU and the October 2017 rating decision granted a TDIU effective April 27, 2017. However, the Veteran indicated in an April 2014 substantive appeal that he had been out of work since March 2014 secondary to his left knee disability. Because the issue of entitlement to a TDIU prior to April 27, 2017 has been raised as a component of the increased rating claim on appeal, it is presently in appellate status before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran was afforded a VA examination in August 2017. Left knee range of motion testing showed that flexion was 0 to 125 degrees with pain, and extension was 125 to 0 degrees with pain. The examiner indicated that although pain was noted on exam, it did not result in/cause functional loss. Further, the examiner stated that there was no evidence of pain on passive range of motion or non-weight-bearing testing. In October 2017, the Veteran was afforded an additional VA examination, which appears to show that his left knee disability had worsened. Left knee range of motion testing showed that flexion was 15 to 90 degrees with pain, and extension was 90 to 15 degrees with pain. Further, the examiner indicated that pain caused functional loss and that there was evidence of pain on passive range of motion and non-weight-bearing testing. The Board finds that the October 2017 VA examination is inadequate because it does not include the range of motion testing results required by the United States Court of Appeals for Veterans Claims (Court) in Correia v. McDonald, 28 Vet. App. 158 (2016). The examiner did not indicate the range of motion measurements for pain on passive range of motion and non-weight-bearing testing. In Correia, the Court found that 38 C.F.R. § 4.59 requires that VA joint examinations must, where possible, include range of motion results for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of motion of the opposite undamaged joint. Id. at 168-169. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, the Board finds that a new examination is required. The examiner should also render a retrospective opinion on the measurements required by Correia. Finally, concerning the Veteran's claim of entitlement to a TDIU prior to April 27, 2017, as that claim is inextricably intertwined with the increased rating claim, the TDIU claim must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). As this claim is being remanded, VA must also seek to obtain updated records of the Veteran's VA and private medical treatment. Accordingly, the case is REMANDED for the following actions: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding pertinent private treatment records. 3. Then schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected left knee disability. The entire claims file should be made available to and reviewed by the examiner and all findings reported in detail. Full range of motion testing must be performed where possible, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in functional loss. The joints involved should be tested in (1) active motion, (2) passive motion, (3) in weight-bearing, (4) in non-weight-bearing (5) and, if possible, with range of motion of the opposite undamaged joint. If the examiner is unable to conduct the required testing, concludes that the required testing is not necessary in this case, or is not medically appropriate, he or she should clearly explain why that is so. The examiner should also provide an opinion as to the range of motion of the left knee throughout the appeal period (excluding the periods dated from February 23, 2012 through April 30, 2012 and August 12, 2013 through September 30, 2013) in (1) active motion, (2) passive motion, (3) in weight-bearing, (4) in non-weight-bearing (5) and, if possible, with range of motion of the opposite undamaged joint. A complete rationale for any opinions expressed should be set forth. If the examiner cannot provide an opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). In assessing functional loss, flare-ups must be considered, and the examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion. If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. Finally, the examiner should provide an opinion as to the extent that the Veteran's left knee disability had impaired his ability to meet the demands of employment prior to April 27, 2017, either sedentary or physical. The examiner's opinion should include an evaluation of the limitations and restrictions imposed by his left knee disability on such routine work activities as interacting with coworkers; sitting, standing, and walking; plus lifting, carrying, pushing, and pulling. 4. Thereafter, readjudicate the appeal, to include the issue of entitlement to a TDIU prior to April 27, 2017. If the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. 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. §§ 5109B, 7112 (2014). _________________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (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).