Citation Nr: 1805757 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 13-29 836 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE 1. Entitlement to a rating in excess of 30 percent for a left knee disability, currently classified as postoperative total left knee arthroplasty. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD G. Morales, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from October 1976 to November 1983. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing in October 2016. A transcript is of record. Additionally, in an April 2015 rating decision, the RO, in pertinent part denied the Veteran's TDIU claim. Thereafter, in July 2015, the Veteran filed a timely notice of disagreement (NOD). A statement of the case (SOC) has not been issued with regard to this claim. However, TDIU is deemed to be part and parcel with the rating claim on appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009) The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. Specifically, a remand is necessary to afford the Veteran a new VA examination. The Veteran last underwent a VA examination to assess the severity of his service-connected knee disabilities in March 2015. At the October 2016 Board hearing, the Veteran gave testimony as to his left knee swelling, instability, and that his left knee weakness causes it to "give out" at least once a week. See 10/27/2016, Hearing Transcript, at p. 5. From his testimony, it can be surmised that his left knee disability has increased in severity since his last VA examination as these symptoms were not reported in the March 2015 VA examination. Accordingly, the Board finds that a new examination is warranted, as there is an indication that the record does not adequately reveal the current state of the claimed disability. Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 2. Thereafter, schedule the Veteran for an examination with an appropriate VA examiner to assess the nature and severity of his left knee disability. The examiner should measure and record all subjective complaints and objective findings, review the claims file, and address the following: a) The examiner should provide a complete description of the Veteran's left knee disability, to include degrees of limitation of flexion and extension (reported in degrees), whether there is impairment of the tibia or fibula, and whether the Veteran's knee is ankylosed. Additional limitation of motion due to pain, weakness, fatigability, or incoordination should be reported (that determination must be expressed in terms of degrees of additional limitation of motion). The examiner should also attempt to estimate the degree of additional limitation, if any, resulting during flare-ups. If this cannot be done, the examiner must explain why. b) All findings must include range of motion testing in active motion and passive motion as well as weight-bearing and non-weight-bearing motion. 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 any requested opinion cannot be provided without resort to speculation, court cases require the examiner to explain why the opinion cannot be offered, and state whether the inability is due to the absence of evidence or to the limits of scientific or medical knowledge. 3. Thereafter, if any benefit sought on appeal remains denied, issue a supplemental statement of the case and return the case to the Board, if otherwise in order. 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. §§ 5109B, 7112 (2012). _________________________________________________ Eric S. Leboff 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).