Citation Nr: 1805444 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 09-00 726 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to a rating in excess of 20 percent for right knee chondromalacia. 2. Entitlement to a rating in excess of 20 percent for left knee chondromalacia. 3. Entitlement to a rating in excess of 20 percent for a low back disability. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) due exclusively to the service-connected low back and bilateral knee disabilities, pursuant to Rice v. Shinseki, 22 Vet. App. 477 (2009). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. Kipper, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1975 to April 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which denied increased ratings for the Veteran's low back and bilateral knee disabilities. In March 2016, the Board remanded this matter in order to afford the Veteran his requested Board hearing. In August 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The issue of entitlement to a TDIU was not certified for appeal. However, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran explicitly raised the issue in a July 2014 VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability), wherein he alleged that he was unemployable due, in part, to his service-connected knee and back disabilities. See also January 2009 VA Form 21-8940. The Board recognizes that the issue of entitlement to a TDIU was previously denied by the Agency of Original Jurisdiction (AOJ). See March 2016 Rating Decision; September 2009 Rating Decision. However, the claim for a TDIU due exclusively to the Veteran's service-connected low back and bilateral knee disabilities remains in appellate status as it is part and parcel of the claim for higher ratings for low back and bilateral knee disabilities. However, to the extent the Veteran wishes to pursue a claim for TDIU based on more than just the service-connected low back and bilateral knee disabilities, the Veteran is invited file such a claim at his local RO. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the issues on appeal. The record suggests that there may be relevant VA treatment records that have not been associated with the claims file. In this regard, VA treatment records dated from June 2006 to April 2011 are associated with the claims file. Although the RO obtained some VA treatment records dated through October 2015, these records are clearly filtered to include only records with the term "homeless," and they are consequently incomplete. Moreover, in a March 2016 rating decision denying entitlement to a TDIU, the RO indicated that it had reviewed online VA treatment records dated from June 2006 to December 2015. The Board is required to conduct a de novo review of the Veteran's claim which entails reviewing the same evidence considered by the RO. In this case, it appears that there may be VA treatment records that are not associated with the claims file, but that were reviewed by the RO. Upon remand, the AOJ should obtain all outstanding VA treatment records dated from September 2004 (one year prior to the Veteran's increased rating claim) to the present, including those indicated above that were reviewed by the RO as indicated in the March 2016 rating decision. 38 C.F.R. § 3.159 (c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992) (observing that any VA treatment records that have been generated up to and including the date of the Board's decision, whether or not filed in the appellant's claims folder, are in the constructive possession of the Board and must be considered). The Veteran was last afforded VA examinations to assess the severity of his service-connected low back and bilateral knee disabilities in January 2013, over five years ago. While the mere passage of time since the last VA examination does not, in and of itself, warrant additional development, the evidence suggests that the Veteran's disabilities may have worsened since the last VA examination. In this regard, private treatment records from November 2016 and October 2017 show that the Veteran reported increasing knee and low back symptoms. Additionally, in November 2017, the Veteran's VA treatment provider completed back and knee Disability Benefits Questionnaires (DBQ), which also show that the Veteran's disabilities may have increased in severity. Further, at the August 2017 Board hearing, the Veteran testified that his disabilities had worsened since the January 2013 VA examination. Moreover, subsequent to the January 2013 VA examination, the Court, in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations 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. Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. After reviewing the VA examinations of record, the Board finds that they are incomplete and require further medical guidance, in light of the recent holding in Correia. As the previous examination reports do not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59, new examinations are necessary to decide the claim. Regarding the November 2017 DBQs completed by the Veteran's VA treatment provider, the Board notes that they do include a section for recording whether range of motion is painful on active, passive, and/or repetitive use testing; however, the treatment provider did not clearly test and record range of motion in active motion and passive motion. Moreover, although the treatment provider noted that there was pain when the knees were used in weight-bearing or non weight-bearing, the provider did not identify whether the pain occurred with weight-bearing, non weight-bearing, or both. Additionally, the provider indicated that pain, weakness, fatigability, or incoordination could significantly limit functional ability of the back and the knees during flare-ups or with repeated use over time; however, the provider did not attempt to estimate such functional loss in terms of range of motion, nor did the provider otherwise describe the functional loss. See Sharp v. Shulkin, 29 Vet. App. 26 (2017) (addressing what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups). In light of the foregoing, remand for additional examinations that comply with 38 C.F.R. § 4.59, Correia v. McDonald, and Sharp v. Shulkin is required. The Board finds that the Veteran's claim for a TDIU is inextricably intertwined with the increased rating issues remanded herein. Therefore, adjudication of the TDIU claim would be premature at this juncture. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Additionally, the Board notes that the Veteran's current employment status is unclear. In this regard, in a July 2014 VA Form 21-8940, the Veteran reported that he had not worked since 2008. However, recent private treatment records submitted by the Veteran indicate that he is employed. See October 2017 Record (Veteran reported that he works in food service and is on his feet all day on concrete floors); November 2016 Record (Veteran was seen in the emergency room with complaints of bilateral low back pain since lifting a 75 pound tub of food at work). On remand, the Veteran should be given another opportunity to provide accurate employment information, including exact dates of all employment. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file all outstanding VA treatment records dated from September 2004 to June 2006 and from April 2011 to the present, to specifically include records dated from April 2011 to December 2015 reviewed by the RO as indicated in a March 2016 rating decision. The Veteran should also be afforded the opportunity to identify and/or submit any outstanding private records pertinent to his appeal. 2. Resend the Veteran a VA Form 21-8940 and request that he complete it with exact dates for all periods of employment. He should also be advised that he may submit other evidence, such as statements from previous employers or her Social Security earnings record, in support of his claim. 3. After all available records have been associated with the claims file the Veteran should be scheduled for an appropriate VA examination so as to determine the current nature and extent of all impairment due to the Veteran's service-connected left and right knee disabilities. The claims file must be made available to the examiner for review in conjunction with the examination, and the examination report must reflect that review was accomplished. All indicated tests should be performed and all findings should be reported in detail. The examiner should describe the nature and severity of all manifestations of the Veteran's left and right knee disabilities. In this regard, the examiner should record the range of motion observed on clinical evaluation, in terms of degrees of flexion and extension. If there is clinical evidence of pain on motion, the examiner should indicate the degree of flexion and/or extension at which such pain begins. Then, after reviewing the Veteran's complaints and medical history, the examiner should render an opinion, based upon his or her best medical judgment, as to the extent to which the Veteran experiences functional impairments such as weakness, excess fatigability, incoordination, or pain due to repeated use or flare-ups, and should portray these factors in terms of degrees of additional loss in range of motion (beyond that which is demonstrated clinically), if feasible. With regard to flare-ups, if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. If the examiner is unable to estimate functional loss in terms in terms of degrees after physical examination and eliciting the pertinent information about the flare-ups above, he or she must explain why and may not rely solely upon his or her inability to personally observe the Veteran's during a period of flare-up. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). In order to comply with the Court's recent precedential decision in Correia v. McDonald, the examiner must test and record the range of motion for both knees in active motion, passive motion, weight-bearing, and nonweight-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. Additionally, the examiner should determine whether the Veteran has ankylosis of the knees; instability or subluxation of the knees; nonunion of the tibia and fibula with loose motion and requiring knee braces; dislocated semilunar cartilages with frequent episodes of locking, pain, and effusion; or severe painful motion or weakness in the knees. Finally, the examiner should discuss the impact, if any, as well as a full description of the effects, that the Veteran's knee disabilities has upon his ability to perform ordinary activities of daily living. The examiner should conduct any appropriate tests and studies in order to determine the nature and extent of the social and industrial impairment attributable to the service-connected left and right knee disabilities. The examiner must provide a rationale for each of the opinions that takes into account the Veteran's reports of his history and his current symptoms. The reasons and bases for each opinion are to be fully explained with a complete discussion of the evidence of record and sound medical principles, which may reasonably explain the medical guidance in the study of this case. 4. After all available records have been associated with the claims file, the Veteran should be scheduled for an appropriate VA examination so as to determine the current level of severity of his low back disability. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the claims folder and the remand have been reviewed. All necessary tests should be conducted. The examiner should describe the nature and severity of all manifestations of the Veteran's low back disability. In this regard, the examiner should record the range of motion observed on clinical evaluation, in terms of degrees of extension, forward flexion, left and right lateral flexion, and left and right rotation. If there is clinical evidence of pain on motion, the examiner should indicate the degree of flexion, extension, and/or rotation at which such pain begins. Then, after reviewing the Veteran's complaints and medical history, the examiner should render an opinion, based upon his or her best medical judgment, as to the extent to which the Veteran experiences functional impairments such as weakness, excess fatigability, incoordination, or pain due to repeated use or flare-ups, and should portray these factors in terms of degrees of additional loss in range of motion (beyond that which is demonstrated clinically), if feasible. With regard to flare-ups, if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. If the examiner is unable to estimate functional loss in terms in terms of degrees after physical examination and eliciting the pertinent information about the flare-ups above, he or she must explain why and may not rely solely upon his or her inability to personally observe the Veteran's during a period of flare-up. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). In order to comply with the Court's recent precedential decision in Correia v. McDonald, the examiner must test and record range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, if applicable. 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. If range of motion is not possible, the examiner should indicate whether the Veteran has unfavorable ankyloses of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. The examiner should also state whether the Veteran's service-connected low back disability is manifested by any neurological impairment, and, if so, which nerves are involved, and the extent of the impairment (mild, moderate, moderately severe, or severe incomplete, or complete, paralysis of the affected nerve). The examiner should specifically indicate whether the Veteran has bowel or bladder impairment, erectile dysfunction, or right and/or left lower extremity radiculopathy as a result of his back disability. The examiner should also state whether the Veteran has incapacitating episodes of low back pain, and if so, the duration of the episodes. Finally, the examiner should discuss the impact, if any, as well as a full description of the effects, that the Veteran's low back disability has upon his ability to perform ordinary activities of daily living. The examiner should conduct any appropriate tests and studies in order to determine the nature and extent of the social and industrial impairment attributable to the service-connected low back disability. The examiner must provide a rationale for each of the opinions that takes into account the Veteran's reports of his history and his current symptoms. The reasons and bases for each opinion are to be fully explained with a complete discussion of the evidence of record and sound medical principles, which may reasonably explain the medical guidance in the study of this case. 5. After the above development has been completed, review the file and ensure that all development sought in this REMAND is completed. Arrange for any further development indicated by the results of the development requested above, and then re-adjudicate the claims. If benefits sought on appeal remain denied, supply the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the case should be returned to the Board for further appellate review, if otherwise in order. 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. §§ 5109B, 7112 (2012). _________________________________________________ DEBORAH W. SINGLETON 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).