Citation Nr: 18140766 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 15-26 224 DATE: October 5, 2018 REMANDED Entitlement to an initial rating in excess of 10 percent for left hip strain is remanded. Entitlement to an initial rating in excess of 10 percent for right hip strain is remanded. Entitlement to an initial rating in excess of 10 percent for left knee strain with degenerative joint disease is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1969 to March 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in January 2013 by a Department of Veterans Affairs (VA) Regional Office. In April 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript is associated with the record. At such time, the Veteran waived Agency of Original Jurisdiction (AOJ) consideration of the evidence associated with the record since the issuance of the May 2015 statement of the case. 38 C.F.R. § 20.1304(c). Therefore, the Board may properly consider this evidence. The Board also notes that additional evidence was associated with the record after the April 2016 hearing for which the Veteran has not waived AOJ consideration; however, as his claims are being remanded, the AOJ will have an opportunity to review the newly received evidence such that no prejudice results to the Veteran in the Board considering such evidence for the limited purpose of issuing a comprehensive and thorough remand. Finally, at the Veteran’s June 2017 Board hearing, he alleged that his service-connected bilateral hip and left knee disabilities rendered him unemployable. Therefore, the Board has assumed jurisdiction over the issue of entitlement to a TDIU as part and parcel of the Veteran’s initial rating claims. Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Entitlement to an initial rating in excess of 10 percent for left hip strain. 2. Entitlement to an initial rating in excess of 10 percent for right hip strain. 3. Entitlement to an initial rating in excess of 10 percent for left knee strain with degenerative joint disease. The Veteran last underwent complete VA examinations in July 2014 and May 2015 to ascertain the nature and severity of his service-connected left and right hip disabilities and left knee disability, respectively. However, since such examinations, the Veteran has alleged that his service-connected disabilities have increased in severity. Furthermore, the Veteran has alleged that the examinations were inadequate. First, he asserts the July 2014 examination, which was conducted within a month of his back surgery, does not reflect accurate weight-bearing range of motion. Further, while the May 2015 VA examination reflects complete range of motion testing was performed, the Veteran contends that he did not in fact undergo the knee flexion portion of the examination. Consequently, a remand is necessary to schedule the Veteran for appropriate VA examinations to assess the current nature and severity of such service-connected disabilities. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Further, the examinations should comply with the holdings in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). At the April 2016 Board hearing, the Veteran’s representative also raised the issue of whether his disabilities warrant referral for extra-schedular consideration. Consequently, in its readjudication of the initial rating claims, the AOJ should consider whether such is warranted. Finally, while on remand, the Veteran should be given an opportunity to identify any records relevant to the claims on appeal that have not been obtained. Thereafter, all identified records should be obtained, to include updated VA treatment records dated from August 2017 to the present. 4. Entitlement to a TDIU. As noted previously, the Veteran has alleged that his service-connected disabilities on appeal have rendered him unemployable. In this regard, he reported that he last worked in 2010 or 2012 as a carpenter. Consequently, the issue of entitlement to a TDIU has been raised in connection with the instant appeal. Therefore, while on remand, the Veteran should be requested to complete and return VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) and the AOJ should conduct any indicated development. The matters are REMANDED for the following actions: 1. The Veteran should be requested to complete and return VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability). Thereafter, the AOJ should conduct any indicated development in regard to the Veteran’s TDIU claim. 2. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records dated from August 2017 to the present. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford her an opportunity to submit any copies in her possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. Afford the Veteran appropriate VA examinations to determine the current nature and severity of his service-connected left hip, right hip, and left knee disabilities. The record, to include a complete copy of this Remand, must be made available to the examiner and all indicated tests should be accomplished. If possible, the examination should be conducted during a flare-up of such disabilities. (A) The examiner should identify the current nature and severity of all manifestations of the Veteran’s left hip, right hip, and left knee disabilities. (B) The examiner should record the range of motion of the disabilities observed on clinical evaluation in terms of degrees for all indicated planes. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination, results in any loss of range of motion. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If he or she 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. (C) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use. In this regard, the examiner should indicate whether, and to what extent, the Veteran’s range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. (D) If the Veteran endorses experiencing flare-ups of his disabilities, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. (F) The examiner should also comment upon the functional impairment resulting from the Veteran’s left hip, right hip, and left knee disabilities. A rationale for all opinions offered should be provided. 4. In connection with the readjudication of the Veteran’s initial rating claims, the AOJ should consider whether extra-schedular referral to the Director of Compensation Service is warranted. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. M. Celli, Counsel