Citation Nr: 1803682 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 09-39 894 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a rating in excess of 10 percent disabling for a left knee disorder classified as chondromalacia of the left knee prior to October 12, 2015 and classified as left knee arthritis with chondromalacia and limited motion as of October 12, 2015. 2. Entitlement to a rating in excess of 10 percent disabling for a right knee disorder classified as chondromalacia of the left knee prior to October 12, 2015 and classified as right knee arthritis with chondromalacia and limited motion as of October 12, 2015. 3. Entitlement to a rating in excess of 20 percent disabling for a left knee disorder classified as knee arthritis with chondromalacia and instability as of February 27, 2016. 4. Entitlement to an initial compensable rating for left knee scar, anterior patella associated with left knee arthritis with chondromalacia and loss of motion as of October 12, 2015. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from October 1979 to June 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned in a hearing at the RO in October 2014; a transcript is of record. In his October 2014 Board hearing the Veteran stated that he had to retire from his post office job due to his knee disability. This statement raised a claim for TDIU, which is under the Board's jurisdiction as part and parcel of the increased rating claim for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). In January 2015 the Board remanded this matter to the RO for further development. Such has been completed and this matter is returned to the Board for further consideration. While this matter was on remand status the RO in an April 2016 rating decision granted a separate service-connected rating for left knee chondromalacia with arthritis and instability with a 20 percent rating effective February 27, 2016 and for a left knee scar, anterior patella associated with left knee arthritis with chondromalacia and loss of motion with a noncompensable rating. The Board has recharacterized the issues to incorporate this grant as part and parcel of the increased rating claims. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds it necessary to again remand this matter. On April 26, 2017, after the last RO adjudication of July 2016, the VA received correspondence from the Veteran stating that he was sending information regarding his bilateral knee, citing two documents; a prescription for knee pain and an application for a temporary disabled plate. The only document received on the same date was a signed statement from a physician stating that the Veteran was disabled secondary to knee pain. The Veteran did not explicitly waive AOJ consideration of such evidence. The Board acknowledges Section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law 112-154, which amends 38 U.S.C.A. § 7105 by adding new paragraph (e), providing that if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration. In this case, the Veteran's substantive appeal was received prior to February 2, 2013 so waiver was necessary. Therefore, the Board finds that remand for AOJ review of this pertinent evidence is necessary. Additionally, due to the poor quality of the scanned document, it is not clear if this document pertains to his reported disabled plate application or prescription reported by the Veteran in his April 2017 statement. On remand, he should be provided an opportunity to obtain and submit further evidence regarding his reported disabled plate application or prescription for his claimed knee disability. Finally in regard to the claim for an increased rating and the intertwined TDIU claim, the Veteran is noted to have last been provided an examination addressing the severity of his service connected bilateral knee disorder in February 2016. Given that his April 2017 statement regarding an application for disabled plates is an assertion that this service-connected disability is more severely disabling than reflected in the currently assigned rating, and in light of the amount of time since his last examination for these disabilities and the possible increase in severity since last examination, reexamination is needed to fully and fairly evaluate the conditions on appeal. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505 -06 (1998) ("Where the record does not adequately reveal the current state of the claimant's disability. . . the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination."). See also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); VAOPGCPREC 11-95 (1995). Additionally, subsequent to the February 2016 VA examination, the Court issued Correia v. McDonald, 28 Vet App. 158 (2016) (holding that specific range of motion studies must be performed that test active and passive range of motion as well as in weight-bearing and nonweight-bearing). Thus on re-examination the examination should address the criteria in Corriea, and also address the criteria contemplated by the Court in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), (by addressing range of motion loss specifically due to pain and any functional loss during flare-ups). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask that he identify all sources of treatment for his knee disorder(s) and to furnish signed authorizations for release to the VA of private medical records in connection with each non-VA source identified. Copies of the medical records from all sources not already of record should then be requested, to include any additional records pertaining to his reported application for disabled tags as he reported in April 2017. All records obtained should be added to the claims folder. If requests for any private or non-VA government treatment records are not successful, the AOJ should inform the Veteran of the non-response so that he will have an opportunity to obtain and submit the records himself in keeping with his responsibility to submit evidence in support of this claim. 2. Obtain all VA treatment records for the Veteran's knee disability since November 2015. If any identified records are not obtained, notify the Veteran of the attempts made, and what further actions will be taken. 3. Then, schedule the Veteran for a VA examination to determine the current severity of his knee disability. The examiner should note review of the claims file. The examiner is requested to address the following: (a) The examiner should measure and record all subjective and objective symptomatology, to include any limitation of motion (active and passive); both weight-bearing and non-weight bearing, as applicable; or ankyloses and any functional impairment. The examiner should report any additional limitation of motion, in degrees, due to weakened movement, excess fatigability, incoordination, flare-ups, or pain. This information is required by VA regulations as interpreted by the courts. The Veteran is competent to report limitation of motion during flare-ups. (b) The examiner should discuss the expected limitations that the Veteran's service-connected knee disability would cause in the workplace, considering the Veteran's occupational and educational history. 4. If any benefit sought on appeal remains denied, issue a supplemental statement of the case before returning the case to the Board, if otherwise in order. 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 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). _________________________________________________ Eric S. Leboff 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).