Citation Nr: 1803872 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 13-34 170A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to a rating in excess of 30 percent for a torn medial and lateral meniscus, status post arthroscopies, right knee. 2. Entitlement to a rating in excess of 10 percent for degenerative joint disease, right knee. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Wozniak, Associate Counsel INTRODUCTION The Veteran served in the U.S. Army from September 1947 to July 1950. This matter came before the Board of Veterans' Appeals (Board) on appeal from April 2011 and May 2011 decisions of the Baltimore, Maryland Regional Office (RO). On his December 2013 substantive appeal (VA Form 9), the Veteran requested a Board hearing at his local RO. In a statement from October 2017, the Veteran withdrew his hearing request. The hearing request is cancelled, and the Board will adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND VA most recently provided a VA examination to determine the severity of the Veteran's service-connected knee disabilities in June 2010. In statements from October 2013 and November 2017, the Veteran indicated his knee disability had worsened. A remand is necessary to provide an additional VA examination to determine the severities of the Veteran's service-connected right knee disabilities. The Veteran's claim for a TDIU is inextricably intertwined with his increased rating claims for a torn medial and lateral meniscus, status post arthroscopies, right knee and degenerative joint disease in his right knee. Therefore, a determination as to whether the Veteran is entitled to increased ratings for his right knee disabilities must be made prior to reaching a decision on his claim for a TDIU. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (noting that two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Request that the Veteran provide the names and addresses of any and all health care providers who provided treatment for his right knee disabilities. After acquiring this information and obtaining any necessary authorization, obtain and associate any pertinent records with the claims file or e-folder. 2. After all available records have been associated with the claims file and/or e-folder, schedule the Veteran for a VA examination to determine the severity and symptomatology of his right knee disabilities. The Veteran's claims file, to include a copy of this Remand, should be made available to and reviewed by the examiner. The examination report should reflect that such review was accomplished. a. As noted above, the examiner should review the record in conjunction with rendering the requested opinion; however, his/her attention is drawn to the following: * In a March 2009 VA orthopedic progress note, the Veteran had range of motion of 0 to 115-120 without pain. * In another March 2009 treatment note the Veteran's range of motion was reported as 0 to 120 degrees bilaterally with a diagnosis of degenerative osteroarthritis in both knees. * In a September 2009 VA treatment note the Veteran indicated that he can walk up steps but is limited by his knees. * In a November 2009 lay statement the Veteran reported that his service-connected injuries made him unemployable. * In a January 2010 application for increased compensation based on unemployability, the Veteran indicated that he has not worked since March 1980. * In June 2010, the Veteran was afforded a VA examination. The Veteran reported retiring from the post-office in 1988 due to right knee problems and indicated he had two operations on his right knee and one operation on his left knee. The examiner noted the Veteran is able to work on a sedentary basis only and is able to perform activities of daily living. The Veteran's right knee range of motion measurements include flexion to 95 degrees and extension to 10 degrees with pain during active motion. The examiner also noted no ankylosis of the right knee and a right antalgic gait. The examiner reported severe degenerative joint arthritis in the right knee. * An April 2011 VA treatment note indicates the Veteran has a normal gait and is able to ambulate without difficulty. * In an October 2013 lay statement the Veteran indicated that his knee condition has worsened and that he is unable to work primarily due to his knee disability. * In a November 2017 brief, the Veteran indicated that his right knee disability had worsened and noted the last VA examination was from June 2010. The Veteran requested a new examination to evaluate his worsening symptoms. b. The examiner must take a detailed history from the Veteran. IF FEASIBLE, THE EXAMINER IS REQUESTED TO REVIEW ALL CLINICAL TESTING, ANY MRI STUDIES, RADIOGRAPHS, RANGE OF MOTION AND OTHER CLINICAL REPORTS AND PROVIDE A "WORST CASE SCENARIO" OF THE VETERAN'S DISABILITY, AND THE LIKELIHOOD OF THE SEVERITY CONTINUING. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete rationale in support of such a finding. 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative must be provided with a Supplemental Statement of the Case (SSOC) and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, 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). _________________________________________________ Vito A. Clementi 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).