Citation Nr: 1805367 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 12-18 166 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to a higher rating in excess of 30 percent for left total knee replacement on and after February 1, 2015. 2. Entitlement to a temporary total evaluation based on treatment for a service-connected condition requiring convalescence on and after February 1, 2015. REPRESENTATION Veteran represented by: Jeffrey Bunten, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Sorathia, Counsel INTRODUCTION The Veteran served on active duty from June 1969 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran testified before the undersigned Veterans Law Judge in May 2015. A transcript of this hearing is associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The issue of entitlement to a higher rating for left knee disability was remanded in November 2015 for a contemporaneous VA examination. During the July 2016 examination, the examiner noted that the Veteran had an additional left knee surgery in December 2015 and stated that the operative report and the treatment records from Dr. L.W. were not associated with the claims file. Initially, the Board notes that although the December 2015 operative report from Dr. L.W. is associated with the claims file, Dr. L.W.'s treatment records immediately before and after the surgery are not of record. Upon remand, the Veteran should be afforded an additional opportunity to identify or submit treatment records from Dr. L.W. During the July 2016 VA examination, the examiner noted that the Veteran continued to experience pain and functional loss after the December 2015 surgery. Although the examiner stated that there were no flare-ups, he further stated that the Veteran has symptoms that occur with use. This examination report did not adequately consider the Veteran's reports of flare-ups in terms of limitation of motion, nor was an explanation provided as to why an estimation of the motion lost during flare-ups could not be provided. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Accordingly, the appeal must be remanded in order to obtain an adequate VA examination that contains such information. Here, the Veteran had a total left knee replacement in December 2013. A May 2014 rating decision assigned a temporary 100 percent rating effective December 2, 2013. The Veteran was assigned a 30 percent rating from February 1, 2015. In a December 2014 statement, the Veteran disagreed with the time period for which a 100 percent rating was assigned and requested an extension. As the left knee higher rating claim on and after February 1, 2015 is remanded for a new VA examination, the RO must address this issue upon remand. Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records dated since August 2017. 2. Afford the Veteran an additional opportunity to submit any other information that is not evidenced by the current record, to specifically include treatment records from Dr. L.W. who performed his December 2015 left knee surgery. Any negative response should be associated with the claims file. 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of the nature, extent, and severity of his left knee disability. He should be provided an appropriate amount of time to submit this lay evidence. 4. Schedule the Veteran for an appropriate VA examination to determine the current nature, extent, and severity of his left knee disability. The claims file should be made available to and reviewed by the examiner. The examiner should conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. The left knee should be tested in active motion, passive motion, weight-bearing and non weight-bearing. 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 should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences and the extent of functional impairment he experiences during a flare-up. The examiner should provide an opinion estimating any additional degree of limited motion caused by functional loss during a flare-up. If the examiner cannot estimate the degree of additional range of motion loss during flare-ups, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). The examiner should also discuss the severity of the Veteran's left knee disability. The examiner should state whether he has severe painful motion or weakness. The examiner should also consider the Veteran's statements of instability of the left knee. 5. Then readjudicate the appeal, to specifically include the Veteran's request for an extension of convalescence beyond February 1, 2015. If any of the benefits sought on appeal are denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ STEVEN D. REISS 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).