Citation Nr: 1803738 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 09-20 809 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for service-connected right knee traumatic arthritis based on limitation of motion. 2. Entitlement to a disability rating in excess of 10 percent for service-connected left knee traumatic arthritis based on limitation of motion. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Tunis, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from August 1972 to August 1992. He was awarded the Meritorious Service Medal and Parachutist Badge, among other decorations. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a July 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The appeal was before the Board in July 2012 and October 2014, when it was remanded for additional development. In an August 2015 decision, the Board granted claims of entitlement to increased ratings for service-connected right and left knee laxity, and denied claims of entitlement to increased ratings for service-connected right and left traumatic arthritis and entitlement to a total disability rating based on individual unemployability (TDIU). The Veteran appealed the August 2015 denial of claims for increased ratings for service-connected right and left traumatic arthritis to the United States Court of Appeals for Veterans Claims (the Court). In a June 2016 order, the Court implemented a Joint Motion for Partial Remand (JMR) vacating and remanding the Veteran's claims for increased ratings for service-connected right and left traumatic arthritis. The parties observed that the Board did not provide adequate reasons and bases for assessing the severity of the Veteran's flare-ups in terms of additional lost degrees of range of motion. The parties also noted that the Veteran abandoned his appeals for increased ratings for right and left knee laxity, right and left instability, and entitlement to TDIU. In August 2016, the Board remanded these issues for further development. The Board again remanded this matter for further development in March 2017. Unfortunately, for the reasons discussed below, another remand is required. During the pendency of the latest remand, the Veteran filed a claim for TDIU. In it, he asserted that he was unemployable due to nonservice-connected elbow and back disabilities. See October 2016 VA Form 21-8940. 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. As the Veteran has asserted that his unemployability is due to nonservice-connected disabilities and not due to his service-connected knee disabilities which are presently on appeal, the Board finds that the claim for TDIU is not part and parcel of the present appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As noted in the Introduction, this matter is before the Board on remand from the Court pursuant to a June 2016 JMR. The June 2016 JMR found that an independent medical opinion was required regarding the Veteran's functional loss during flare-ups expressed in terms of loss of degrees of range of motion. See June 2016 JMR, pg. 4. This matter was remanded by the Board in August 2016, and then again in March 2017. In March 2017, the Board remanded the matter for a new VA examination on the basis that the September 2016 VA examiner did not provide an adequate opinion regarding the Veteran's functional loss during flare-ups. Specifically, as discussed in the Board's prior remand, the September 2016 VA examiner noted that the Veteran experienced flare-ups first thing in the morning, when ascending stairs, and when the weather changed. See September 2016 VA examination, pg. 2. Upon repetitive testing, the September 2016 VA examiner noted that the Veteran did not experience any additional functional loss or reduced range of motion after three repetitions, but then noted that he was unable to say whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time because the Veteran was not examined over an extended time period. Id. at pp. 3-4. Further, with respect to flare-ups, the examiner noted that the examination was medically consistent with the Veteran's statements describing functional loss during flare-ups; however, he could not comment on whether pain, weakness, fatigability, or incoordination significantly limited functional ability during flare-ups because the Veteran was not currently experiencing a flare-up. Id. The examiner's supporting rationale for why he was unable to discuss the Veteran's functional loss in terms of range of motion during a flare-up is conclusory in nature. Upon remand in March 2017, the Veteran was afforded a new VA examination in April 2017. Again, the VA examiner noted flare-ups of the bilateral knees during weather changes. The examiner found that the "examination is neither medically consistent or inconsistent with the Veteran's statements describing functional loss during flare-ups." The examiner also noted that "pain, weakness, fatigability or incoordination significantly limits functional ability with flare-ups." However, the VA examiner has not provided explanation or rationale as to the functional loss. The VA examiner simply noted "pain" as a factor that causes functional loss, and noted that he was unable to describe the functional loss in terms of range of motion because he was "unable to examine the Veteran under these conditions and therefore cannot provide accurate ROM." Again, the Board finds that a new VA examination is needed to provide an opinion supported by rationale regarding the Veteran's functional loss during flare-ups. As the Court held in Sharp v. Shulkin, pursuant to VA regulations and the VA Clinician's Guide, when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire whether there are periods of flare-ups and, if the answer is yes, to state their "severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, 'per [the] veteran,' to what extent, if any, they affect functional impairment." Sharp, at 10-11. The Court further explained that, in the event an examination is not conducted during a flare-up, the "critical question" in assessing the adequacy of the examination was "whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares." Id. at 16 (quoting Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011)). Here, the April 2017 VA examination report of record reflects a positive indication of flare-ups for the bilateral knee. Although the report contains some minimal information regarding flare-ups, no estimation was provided regarding loss of range of motion during flares. Additionally, the adequate information-i.e. frequency, duration, characteristics, severity, or functional loss-was not reported in the VA examination. In light of Sharp, a new examination is necessary. Accordingly, the case is REMANDED for the following action: 1. Take appropriate action to obtain VA treatment records not already of record relating to the Veteran's treatment for his right and left knee disabilities. If VA is unable to obtain these records, the Veteran must be notified of this fact and all efforts to obtain them must be documented and associated with the claims file. 2. 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, for both the right and left knees. 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 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 right and left knee disabilities that develop on repetitive use or during flare-up. The examiner should elicit from the Veteran a complete history of any flare-ups of his right and left 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 right and left knee disabilities. The examiner should describe the additional loss, to include in degrees, if possible or sufficiently explain why any additional functional loss cannot be described or quantified. A detailed rationale for the opinion must be provided. In rendering the above requested opinion, the examiner should derive his or her estimate from relevant sources within the claims file, including treatment records and lay statements of the Veteran. If the examiner is unable to offer the requested opinion, the examiner should provide a rationale for that conclusion, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. After ensuring that the requested actions are completed, the AOJ should conduct any other development actions deemed warranted and readjudicate the claims on appeal. If any benefit sought is not fully granted, the AOJ must furnish a Supplemental Statement of the Case before the claims file is returned 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). _________________________________________________ K. J. ALIBRANDO 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).