Citation Nr: 1805105 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-15 248 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to a rating in excess of 10 percent for the service-connected right knee disability. 2. Entitlement to a total disability rating due to individual unemployability (TDIU) prior to May 1, 2013. REPRESENTATION Appellant represented by: Christopher Loiacono, Agent ATTORNEY FOR THE BOARD A. Smith, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Marine Corps from December 1978 to December 1981. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND While further remand is regrettable, the Board finds that additional development is necessary to evaluate the Veteran's right knee disorder during the period on appeal. In January 2016, this case was remanded for a new VA examination to assess the current severity and manifestations of the Veteran's right knee disorder. In August 2017, the Veteran underwent a new VA knee examination. Having reviewed the corresponding Disability Benefits Questionnaire (DBQ), the Board finds that the August 2017 examination findings are inadequate for rating purposes. The August 2017 VA examiner indicated that the Veteran does not and has never had any meniscal conditions. However, Northpoint VA Medical Center (VAMC) records include an October 2010 MRI for the right knee. The impression provided for the MRI indicates extensive truncation of the lateral meniscus and medial meniscus. The impression also indicates that the lateral meniscus appeared diffusely macerated and that there was a focal defect seen in the residual posterior horn of the medial meniscus and a suspected meniscal fragment superior to the anterior horn of the medial meniscus measuring approximately 17 mm. Additionally, a December 2012 addendum from Northport VAMC indicates that the Veteran has a medical history of right knee meniscus repair. The August 2017 DBQ does not mention the October 2010 MRI or any meniscus repair. Because the Veteran had the diagnosis during the appeal period, the VA examiner needed to address that diagnosis and whether it was accurate or in error. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As such, remand is necessary to properly account for any current or past meniscus conditions. Given the need to physically assess the Veteran's knee and any other conditions associated with it, the Board finds that a new VA examination is necessary. Because the outcome of the increased rating claim for the knee could impact the outcome of the TDIU claim, the Board finds that these two issues are inextricably intertwined and adjudication of the TDIU issue must be deferred. Henderson v. West, 12 Vet.App. 11, 20 (1998) (quoting Harris v. Derwinski, 1 Vet.App. 180, 183 (1991)) (Two claims are inextricably intertwined "where a decision on one issue would have a 'significant impact' upon another, and that impact in turn 'could render any review by this Court of the decision [on the other claim] meaningless and a waste of judicial resources.'"). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any relevant and outstanding VA treatment records. Additionally, have the Veteran identify any additional treatment records regarding his right knee condition. If necessary, obtain authorization to enable the AOJ to obtain any additional evidence pertinent to the claim. If additional records are identified and the AOJ is unsuccessful in its efforts to obtain any such evidence, it should inform the Veteran and his representative of such and request that they submit the outstanding evidence. 2. Schedule the Veteran for a new VA examination for his right knee disability. The claims file must be made available to the examiner, and the examiner should state in the opinion that review of the electronic record was accomplished. The examiner is asked to review all pertinent records associated with the claims file and any assertions made by the Veteran regarding his symptoms. The examiner is advised that the Veteran is competent to attest to observable symptoms, such as pain. If there is a medical basis to support or doubt the Veteran's reports of symptomatology, the examiner should provide a fully reasoned explanation. The examiner must provide all information required for rating purposes. Specifically, in assessing any meniscal condition, or lack thereof, it is imperative that the VA examiner reconcile any finding that the Veteran does not have a meniscal condition with any previous diagnoses or impressions of a meniscus condition, particularly the October 2010 MRI. Importantly, the examiner is also advised that it is necessary to consider, along with the schedular criteria, functional loss due to pain, fatigability, incoordination, pain on movement, and weakness. Additionally, the examiner must test the Veteran's range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing and if possible, test the opposite undamaged joint as well. See Correia v. McDonald, 28 Vet. App. 158 (2016). 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. 3. The AOJ should review the examination report to ensure that it is adequate. If the examination report is not adequate, the RO should take corrective action. 4. After completing the above actions, readjudicate the claims on appeal, including TDIU prior to May 1, 2013. If the benefits sought remain denied, the Veteran should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ GAYLE E. STROMMEN 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).