Citation Nr: 18144967 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 12-01 747 DATE: October 25, 2018 REMANDED Entitlement to an initial evaluation in excess of 10 percent for right fifth finger fracture residuals with traumatic arthritis is remanded. Entitlement to an initial evaluation in excess of 40 percent for right knee arthritis prior to April 7, 2014, is remanded. Entitlement to an evaluation in excess of 40 percent for right knee arthritis from April 7, 2014, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1984 to September 1985. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision. The Board remanded these matters for additional development in January 2014. In February 2017, the Board granted entitlement to an initial evaluation of 40 percent for right knee arthritis for the time period prior to April 7, 2014, as well as denied entitlement to an initial evaluation in excess of 10 percent for right fifth finger fracture residuals with traumatic arthritis. The Board also remanded the matter of entitlement to an evaluation in excess of 40 percent for right knee arthritis for the time period from April 7, 2014, for additional development. The Veteran thereafter appealed the Board’s decision to the U. S. Court of Appeals for Veterans Claims (Court). In a March 2018 Order, the Court granted a February 2018 Joint Motion for Partial Remand (Joint Motion), partially vacating the February 2017 Board decision as to the denials of entitlement to an initial rating in excess of 40 percent for right knee arthritis prior to April 7, 2014, and entitlement to an initial rating in excess of 10 percent for right fifth finger fracture residuals with traumatic arthritis and remanding those matters to the Board for re-adjudication consistent with the Joint Motion. 1. Entitlement to an initial evaluation in excess of 10 percent for right fifth finger fracture residuals with traumatic arthritis is remanded. 2. Entitlement to an initial evaluation in excess of 40 percent for right knee arthritis prior to April 7, 2014, is remanded. An appeal for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is separately docketed. In November 2017, the Board remanded that matter for additional development, to include instructing the RO to refer the claim of entitlement to a TDIU to the Compensation and Pension Service Director for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). As development of evidence concerning the Veteran’s employability is incomplete, the Board finds the appeals concerning the initial evaluations for the service-connected right fifth finger and right knee disabilities to be intertwined with the TDIU issue herein. Brambley v. Principi, 17 Vet. App. 20, 24 (2003) (noting the inextricably intertwined nature of a decision on extraschedular consideration and a TDIU claim); see also Harris v. Derwinski, 1 Vet. App. 180 (1991). 3. Entitlement to an evaluation in excess of 40 percent for right knee arthritis from April 7, 2014, is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous February 2017 remand directives regarding this matter. The September 2017 VA knee examination report findings did not include all of the necessary joint testing required under Correia v. McDonald, 28 Vet. App. 158 (2016), as the examiner failed to provide the range of motion of the right knee in degrees on active motion, passive motion, weight-bearing, and nonweight-bearing. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board is cognizant that the record already contains Social Security Administration (SSA) records dated in 2009. However, in a June 2017 statement, the Veteran was shown to have been awarded SSA disability benefits for osteoarthrosis at that time. Any records associated with any claim for SSA disability benefits, particularly medical records, could shed additional light on the initial rating claims currently before the Board. As such, these records should be obtained for consideration in connection with the instant appeal. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). Evidence of record further reflects that the Veteran receives VA medical treatment for his service-connected right fifth finger and right knee disabilities from the St. Louis VAHCS. As the electronic claims file only includes treatment records dated through December 2017 from those facilities, all pertinent VA treatment records should be obtained and properly associated with the record. 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (finding that VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The matters are REMANDED for the following actions: 1. Obtain updated VA treatment records pertaining to the Veteran’s service-connected right fifth finger and right knee disabilities from St. Louis VAHCS for the time period from December 2017 to the present. 2. Contact SSA and request a copy of any decision regarding disability benefits for the Veteran as well as the medical records upon which any such decision was based. All requests and responses, positive and negative, should be associated with the Veteran’s electronic claims file. If the records cannot be located, a formal finding of unavailability should be associated with the Veteran’s electronic claims file. 3. Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected right knee disability. The electronic claims file must be made available to the examiner for review and the examiner must note that the claims file was reviewed. Any indicated tests and studies must be completed. All symptoms and manifestations of right knee arthritis must be noted in the report, including ranges of motion. The examiner is requested to test the range of motion (providing range of motion measurements in degrees) for the right knee on active motion, passive motion, weight-bearing, and nonweight-bearing, as well as to provide range of motion measurements of the opposite undamaged joint. 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 provide an explanation for that determination in the report. The examiner should note, in degrees, if repeated range of motion testing results in additional limitation of motion, or in additional functional loss. The examiner should also note the degree(s) of additional range of motion loss due to pain on use and during flare-ups. If there is functional loss/impairment, the examiner should express the degree of additional range of motion loss, if possible. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). The Veteran is hereby advised that failure to report for any scheduled VA examination without good cause shown may have adverse effects on his claim. 38 C.F.R. § 3.655 (2017). (Continued on the next page)   4. After development for the separately docketed appeal for entitlement to a TDIU as well as the above actions have all been completed, the initial rating claims on appeal must be re-adjudicated, taking into consideration all relevant evidence associated with the record since the October 2015 and January 2018 supplemental statements of the case. Based on the Veteran’s assertions, the AOJ must also discuss whether referral of the Veteran’s electronic claims file to the Compensation and Pension Service Director for extraschedular consideration is appropriate for the Veteran’s service-connected right fifth finger fracture residuals with traumatic arthritis under 38 C.F.R. § 3.321(b). If any benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. D. Deane, Counsel