Citation Nr: 1805844 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 14-10 218 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to a disability rating in excess of 10 percent for left knee patellofemoral syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Harper, Associate Counsel INTRODUCTION The Veteran served on active duty from May 2002 to March 2010 in the United States Navy. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which increased the rating for the Veteran's left knee disability from zero to 10 percent, effective January 2, 2013. As will be discussed in further detail below, the record raises the issue of unemployability due to the Veteran's service-connected disabilities. See 38 C.F.R. §§ 3.340 , 4.16 (2017); Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (holding, in pertinent part, that the issue of entitlement to TDIU is part and parcel of an increased rating claim when unemployability due to the disability at issue is raised by the Veteran or the record). In November 2017, the Veteran testified before the undersigned Veterans Law Judge sitting at the St. Petersburg, Florida RO. A copy of the hearing transcript is of record and has been reviewed. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran is in receipt of a 10 percent disability rating for a left knee disability. He contends that a higher rating in excess of 10 percent is warranted. A remand is necessary to provide the Veteran with an additional VA examination and to obtain outstanding medical evidence. The Veteran was last afforded a VA examination of the left knee in September 2015. Generally, the mere passage of time is not a sufficient basis for a new examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007) (holding that the mere passage of time, without evidence of worsening, does not require a new examination); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). However, the Veteran testified at the November 2017 hearing that he believed his left knee disabilities had increased in severity because he experienced an increase in swelling, pain, buckling, weakness, and loss of range of motion in the left knee. The Veteran indicated he has fallen a couple of times playing with his son and doing chores. Additionally, the Veteran was experiencing left knee buckling and weakness. This more recent lay evidence suggests a worsening of the Veteran's disability since last examined by VA, warranting an updated examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Further, as indicated above, the record raises the issue of entitelment to TDIU. Specifically, the Veteran testified at the November 2017 Board hearing that he previously worked in the culinary field, but was forced to quit because he was unable to sustain a 40-hour work week due to his left knee disability. The Veteran testified that currently he is working with a temporary staffing agency, but he still could not work full-time because he experienced pain and swelling from prolonged standing. The Veteran also testified that his employment history only includes manual labor. The Veteran also contends his left knee disability makes activities of daily living difficult. Accordingly, the issue of entitlement to TDIU is also on appeal, as part and parcel of the increased rating claim. On remand, the RO should provide appropriate VCAA notice informing the Veteran of the requirements for establishing entitlement to TDIU and request him to fill out an application for TDIU (VA Form 21-8940), including his work history and educational background. Accordingly, the case is REMANDED for the following action: 1. Obtain all pertinent outstanding VA treatment records and associate them with the claims file. 2. Request the Veteran identify all treatment providers and facilities where he has received treatment for his left knee disability. Request the Veteran authorize the release of, or to provide copies of, outstanding private medical records from relevant private treatment providers or facilities identified by the Veteran. *Specifically, request appropriate authorization from the Veteran and make attempts to obtain outstanding private treatment records related to the left knee for Atlantic Orthopaedic Specialists and/or Dr. J.J.S. in Virginia Beach, VA. 3. Provide the Veteran with appropriate VCAA notice for TDIU and provide a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. Request that he complete and return this form to the RO. Afford the Veteran the opportunity to identify or submit any additional pertinent evidence in support of the TDIU claim. 4. Then, schedule the Veteran for an additional VA examination to evaluate the current severity of the service-connected left knee disability. The examiner must review all pertinent records associated with the claims file. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. **Specific attention is called to the Veteran's contentions that current symptoms of the left knee disability include an increase in pain, swelling, buckling, weakness, and loss of range of motion, which cause additional functional loss. The Veteran also reported pain in his knee that travels to the bottom of his left foot, then to the right foot, and up to his right knee. See November 2017 Board hearing transcript. After examining the Veteran and reviewing the claims file, the examiner is asked to address the following: (a). Elicit from the Veteran all orthopedic and neurologic signs and symptoms of the service-connected left knee disability and address its current severity. In doing so, please review the most recent 2017 MRI finding and specifically indicate what, if any, of the findings are related to the service-connected left knee disability. (b). Test and report the range of knee motion in active motion, passive motion, weight-bearing, and nonweight-bearing for the joint in question AND the paired joint. (c). In reporting the range-of-motion findings, comment on the extent of any painful motion, at which measurement the pain begins, functional loss due to pain, weakness, excess fatigability, and additional disability during repetitive use and/or flare-ups. (d). If not being examined after repetitive use or during a flare up, obtain information from the Veteran (or the treatment records) as to the frequency, duration, characteristics, severity, and functional loss of the left knee during repetitive use or during flare-ups. If the examiner is unable to provide such an opinion without resorting to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). The examiner should provide an explanation for any conclusions reached. 5. Thereafter, readjudicate the increased rating claim and the derivative TDIU claim on appeal. If the benefit on appeal remains denied, furnish the Veteran and his representative with an SSOC and allow an appropriate time for response. Thereafter, return the file to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ S. B. MAYS 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).