Citation Nr: 1803794 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 10-08 664 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to an increased rating for a service-connected right knee disability, variously characterized as locked bucket handle medial meniscus tear of the right knee, evaluated as 20 percent disabling on and after January 1, 2009 until November 19, 2010, and from January 1, 2011 until March 28, 2016 and as a right total knee arthroplasty, evaluated as 30 percent disabling from May 1, 2017. 2. Entitlement to an extension of a temporary total rating due to convalescence (TTD) for right knee disability past January 1, 2009. 3. 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 The Veteran ATTORNEY FOR THE BOARD C. Smith, Associate Counsel INTRODUCTION The Veteran served honorably on active duty in the U.S. Marine Corps from August 1995 until August 1999. This matter comes to the Board of Veterans' Appeals (Board) on appeal from June 2008 and June 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The June 2008 rating decision granted entitlement to a TTD effective May 2008, and assigned a 20 percent rating effective July 1, 2008. The June 2009 rating decision extended the period of TTD until December 31, 2008 and assigned a 20 percent rating on and after January 1, 2009. During the pendency of the appeal, a January 2013 rating decision granted a TTD for the right knee for the period from November 19, 2010 until December 31, 2010, and assigned a 20 percent rating on and after January 1, 2011. A May 2016 rating decision then granted service connection for a right knee total arthroplasty and assigned a 100 percent evaluation effective March 28, 2016. These increases did not constitute full grants of the benefit sought for the entire period, including consideration of ratings higher than 20 and 30 percent; therefore, the higher evaluation issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). In a September 2008 VA orthopedic surgery note, Dr. M. M. wrote that the Veteran's employment consisted of electrical repair involving heavy manual labor, standing, walking, and latter climbing that was incompatible with his May 2008 and November 2008 knee surgeries. Dr. M. M. then wrote that the Veteran would likely be unemployable for 12 months following his initial surgery, which was the time he needed to properly rehabilitate. In the context of asserting that he is entitled to an extended period of TTD, the Veteran discussed the impact of his right knee surgeries on his ability to work. A claim for a TDIU rating is part of an increased rating claim when such claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Thus, in light of the Veteran's contentions, the Board finds that the issue of TDIU is raised by the record, is part and parcel of the higher rating claim, and is properly before the Board. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in November 2016 at the RO. Unfortunately, due to a technical error a transcript of the proceeding was unable to be produced. In January 2017, the Board notified the Veteran of the error and explained that the Veteran was entitled to another hearing if he desired. The letter informed the Veteran that, if he did not respond in 30 days, the Board would assume he did not desire another hearing. The Veteran did not respond to the letter. Thus, the Board assumes he does not desire another hearing. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND First, remand is required for AOJ consideration of newly received evidence. See 38 C.F.R. § 19.31 (which stipulates that the AOJ will furnish the Veteran and his/her representative a SSOC if the AOJ receives additional pertinent evidence after a statement of the case (SOC) or the most recent SSOC has been issued and before the appeal is certified to the Board and the appellate record is transferred to the Board). The November 2015 supplemental statement of the case (SSOC) noted review of the December 2009 statement of the case (SOC) and all evidence contained therein, the Veteran's substantive appeal, and October 2011 and July 2014 VA examinations. Of record are relevant VA treatment records that have not been considered by the AOJ in the first instance. These records include: VA treatment records from March 2009 through May 2017, showing right knee surgeries and related hospitalizations in November 2010, March 2016, and April 2016; and a May 2016 VA examination. While the RO issued rating decisions that considered the 2016 surgery records and VA examination, a new SSOC was never issued. In November 2017, the Veteran wrote that he would like his case remanded to the AOJ for review of the additional evidence. Thus, the case must again be remanded for AOJ consideration of newly received evidence. Remand is also required for another VA examination. The Veteran most recently underwent a VA right knee examination in May 2016, a few months after his total knee replacement surgery. Since then, the Veteran's knee rating has been reduced to 30 percent, which is the minimum rating following knee replacement surgery. Higher ratings are available under diagnostic codes 5261 which is predicated on limitation of extension. VA examinations for musculoskeletal conditions must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 38 C.F.R. § 4.59 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016). While the examiner indicated there was pain with weight-bearing, the examiner did not otherwise comment on pain in active or passive motion, and in nonweight-bearing. Thus, remand is required for another VA examination that includes all necessary findings. The issue of entitlement to a TDIU is raised by the record and inextricably intertwined with the pending issues on appeal. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Last, on remand all outstanding VA treatment records should be identified and associated with the electronic claims folder. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of his service-connected residuals of a total right knee arthroplasty. The entire claims file should be made available to, and reviewed by, the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must utilize the appropriate Disability Benefits Questionnaire. The examiner must comment upon any right knee pain upon active motion, passive motion, weight-bearing, and nonweight-bearing. The examiner must attempt to obtain the same measurements in the opposite limb. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner is also asked to comment on whether there is severe painful motion or weakness in the affected extremity. 3. Then, readjudicate the issues on appeal-as are listed on the title page of this Remand. If any decision is adverse to the Veteran, issue a supplemental statement of the case. The SSOC must address VA treatment records from March 2009 through May 2017, showing right knee surgeries and related hospitalizations in November 2010, March 2016, and April 2016; and the May 2016 VA examination. Allow appropriate time for response, and return the case to the Board. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991). His failure to help procure treatment records, and his failure to report for a scheduled VA examination, may impact the determination made. 38 C.F.R. § 3.655 (2017). He is also advised that he has the right to submit additional evidence and argument, whether himself or through his representative, with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). It must be afforded prompt treatment. The law indeed requires that all remands by the Board or the United States Court of Appeals for Veterans Claims (Court) be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board is appealable to the Court. 38 U.S.C.A. § 7252 (West 2014). 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).