Citation Nr: 1804318 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 08-26 449A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to a compensable evaluation for lipoma and ganglion cyst, right leg post-operative with decrease range of motion of the knee, prior to July 13, 2011, and in excess of 10 percent thereafter. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from September 1972 to September 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which in pertinent part, denied a compensable rating for the Veteran's right knee disability. An August 2014 rating decision by the Denver, Colorado RO granted a 10 percent rating for the right knee disability, effective July 13, 2011. As the August 2014 decision was not a full grant of the benefit sought on appeal, the appeal is still pending. AB v. Brown, 6 Vet. App. 35 (1993). A hearing before a Veterans Law Judge (VLJ) was held in November 2014. In February 2017, notice was sent to the Veteran that the VLJ who presided over the November 2014 hearing is no longer with the Board. Accordingly, the Veteran was afforded another opportunity for a hearing. 38 U.S.C. § 7107; 38 C.F.R. §§ 19.3, 20.707. In March 2017, the Veteran declined another hearing. The transcript of the November 2014 proceeding is associated with the claims file. In January 2015, December 2015, and June 2017, the appeal was remanded to the RO for further development, which has been accomplished. See Stegall v. West, 11 Vet. App. 268, 271 (1998). It now returns to the Board for appellate review. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Regrettably, the Board determines that another remand is necessary. While the appeal was in remand status, the United States Court of Appeals for Veterans Claims (Court) issued another decision relevant to the examination and rating of knee disabilities that must be addressed. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court explained that VA examiners must do all that can be reasonably done to become informed about a veteran's reported musculoskeletal flare-ups prior to providing an opinion on functional loss during flares. Specifically, the Court found an examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, before concluding an assessment of the functional loss during flares could not be provided without resorting to speculation. While the most recent VA examination reports from May 2016 and June 2017 state that the Veteran denied flare-ups, he reported flare-ups in a July 2015 VA examination. Therefore, the Board finds that the Veteran should be afforded another VA examination of his right knee. The outcome of the Veteran's claim of entitlement to TDIU is dependent, at least in part, on the outcome of the increased rating claim. Therefore, the Board also remands this issue as inextricably intertwined with the other claims on appeal. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc). Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims. 2. The Veteran should be afforded the appropriate VA examination to determine the degree of severity of his right knee disability. All pertinent evidence of record must be made available to and reviewed by the examiner, and any indicated tests and studies should be performed. The examiner must provide accurate and fully descriptive assessments of all symptoms and must comment upon the frequency and severity of the Veteran's symptoms in accordance with VA rating criteria. The examiner must provide all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight-bearing and nonweight-bearing range of motion assessments. In addition, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares-in degrees of motion lost, if possible. If the examiner is unable to conduct any needed testing or concludes that testing is not necessary, the examiner should clearly explain why that is so. 3. Readjudicate the issues remaining on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, a supplemental statement of the case should be issued to the Veteran and his representative, and they should be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND 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 (2012). ______________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).