Citation Nr: 18145312 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 09-12 982 DATE: October 26, 2018 REMANDED Entitlement to an evaluation in excess of 10 percent for left knee laxity is remanded. Entitlement to an evaluation in excess of 10 percent for left leg neuroma is remanded. Entitlement to an effective date prior to December 15, 2011 for service-connected TDIU is remanded. REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 10 percent for left knee laxity is remanded. While the Board sincerely regrets additional delay, further development is required before the Veteran’s claim may be adjudicated on the merits. The Board has reviewed the September 2015, November 2015 and December 2015 VA examinations, and it does not appear that either examiner tested the Veteran’s passive range of motion, pain on active motion, or tested the Veteran during non-weightbearing. In a recent holding, the Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weightbearing and non-weightbearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Thus, the Board must find the 2015 VA examinations inadequate. However, there are additional concerns with the 2015 VA examinations. The December 2015 VA examination reflects that range of motion testing was normal for the left knee, and that there is no ankylosis or instability. Furthermore, no surgical procedures are noted, and the examiner renders a negative etiological opinion for the Veteran’s already service-connected left knee disability. However, mild laxity in the knees was noted. The November 2015 VA examination reflects abnormal range of motion in the left knee. Further, no ankylosis or instability is noted, and the examiner commented that no laxity of either knee was found. The September 2015 VA examination reflects that the Veteran does indeed have instability in the left knee, which was described as moderate. The examiner further noted that the Veteran has a history of his left knee giving way. The medical findings contained in the aforementioned VA examinations are in conflict, and fail to provide a medically consistent, thorough and clear disability picture. These examinations, which were conducted within four months of each other, reflect a range of testing from no instability in the knee, to mild laxity, to moderate instability. A thorough medical examination is one which “takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one.” Barr v. Nicholson, 21 Vet. App. 303 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 124 (1991). A medical opinion is adequate when it is based upon consideration of the Veteran’s prior medical history and examinations and also describes the disability in sufficient detail so that the Board’s “evaluation of the claimed disability will be a fully informed one.” Id., citing Ardison v. Brown, 6 Vet. App. 405, 407 (2007). Additionally, review of the Veteran’s medical records shows that the Veteran has had continued treatment after his last VA examination of December 2015. Specifically, several knee injections and therapy sessions are documented in private treatment records. The Board further acknowledges the Veteran’s representative’s statement of September 2018, wherein the Veteran’s knee disability is referred to as “severe”. As the last VA examination of record is in 2015, contains conflicting evidence, approximately three years have elapsed since, and there is evidence suggestive that the knee disability may have worsened, the Board finds it necessary to obtain a more current VA examination which clearly addresses the nature and severity of the Veteran’s left knee disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997). The Veteran’s left knee claim must therefore be remanded in order to obtain an adequate and appropriate VA examination. See 38 C.F.R. § 4.59, Correia, supra; Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 2. Entitlement to an evaluation in excess of 10 percent for left leg neuroma is remanded. The Board notes that the Veteran was last afforded a VA peripheral nerves examination in April 2014. Since then, the Veteran’s knee and lower leg examinations have not included any associated neurological testing. Review of the April 2014 VA examination shows that the Veteran was found to have residual pain, and several other symptoms attributable to his neuroma. Specifically, moderate intermittent pain, paresthesias or dysesthesias and numbness were noted. Also, the Veteran’s left lower leg reflexes were found to be decreased. However, the Board notes that no EMG testing was performed, nor was any other diagnostic testing, and all nerves were noted to be normal. The Board acknowledges the Veteran’s representative’s statement of September 2018, indicating that the Veteran’s neuroma causes significant symptoms in his left leg. The representative also states that the Veteran’s left leg Achilles reflexes are absent, suggesting that the disability may have worsened since the April 2014 VA examination. The Board therefore finds it necessary to obtain a more current VA examination which clearly addresses the current nature and severity of the Veteran’s left neuroma disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997). 3. Entitlement to an effective date prior to December 15, 2011 for service-connected TDIU is remanded. First, the Board will address the argument presented by the Veteran’s representative that in a previous Board decision of 2016, the Board granted an effective date of October 3, 2008 for a TDIU. Namely, the representative cites a line in the Board’s decision which states “the Veteran is being granted a TDIU rating, effective from October 3, 2008.” See response brief. The Board finds the statement to be a typographical error and concludes that an effective date of October 3, 2008 was not granted in its 2016 decision. First, such is not reflected in the findings of fact or conclusions of law, and is not included in the decision’s Orders. Second, the referenced sentence appears in a discussion of the Veteran’s PTSD evaluation, not in a discussion of the effective date claim – and when read in its proper context rather than as a standalone statement, it is clear that the Board referenced the “section below” for its substantive analysis of the issue. The only other part of the decision addressing TDIU is the remand section, which clearly indicates that the earlier effective date claim must be remanded for further development and adjudication. Also, in the remand instructions, the Board clearly directs the AOJ to re-adjudicate the Veteran’s claim for an effective date earlier than December 15, 2011 for the assignment of a TDIU, following other development and adjudication also directed in the remand. Therefore, the Board finds that the referenced statement in its September 2016 decision is no more than inadvertent error. The argument set forth by the Veteran’s representative mischaracterizes what is clearly a typographical error as a final ruling, and dismisses the Board’s remand instructions as confusing, when in fact they are very clear. Turning to the adjudication of the earlier effective date for a TDIU, the Board notes that the Veteran meets the schedular criteria for an award of a TDIU benefits from October 3, 2008 under 38 C.F.R. § 4.16. Also, the Director for Compensation Service has issued an opinion as to employability for the period prior to October 3. 2008. However, the issue of entitlement to an evaluation in excess of 10 percent for a left knee disability and in excess of 10 percent for a left leg neuroma have been remanded herein. The Veteran’s claim for TDIU is inextricably intertwined with the increased rating claims for the knee and leg neuroma. As such, a final decision on the issue of entitlement to TDIU cannot be rendered at this time. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA or private treatment records. 2. After all outstanding records have been associated with the claims file, the Veteran should be afforded a VA examination to determine the current nature and severity of his left knee disability. The examiner should review the record and note such review in the examination report. The examination should include a review of the Veteran’s history and current complaints as well as a comprehensive evaluation and any tests deemed necessary. The examiner should identify the nature and severity of all manifestations of the Veteran’s left knee disability. The examiner must specifically indicate the level of severity of any instability in terms of “mild”, “moderate” or “severe.” The examiner should also comment on the functional impairment associated with the Veteran’s left knee disability, to include the impact such has on his daily life and employment. Complete range of motion testing of both knees should be accomplished and the examiner should note the point at which there is pain on motion, if any. Active and passive range of motion testing as well as weight-bearing and nonweight-bearing testing must be conducted. If possible, the examiner should indicate how far back (i.e., one year, two years, etc.) these results would apply. Further, if any test is not deemed warranted or cannot be completed, such should be identified and explained. The examiner should also note any additional loss of function with repetition due to factors such as pain, weakness, fatigability, and pain on movement. The extent of additional limitation should be expressed in degrees. If flare-ups are reported, the examiner must express an opinion on whether the flare-ups are associated with additional functional loss. If so, he or she should estimate the degree of lost motion during such flare-ups. 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. 3. Schedule the Veteran for a VA examination to evaluate the current severity of his service-connected left leg neuroma. The Veteran’s claims file should be reviewed by the examiner in conjunction with the examination. The examiner should identify and describe all current symptomatology. The examiner should provide a detailed review of the Veteran’s current complaints, as well as findings as to the nature, extent, and severity of symptoms caused by the Veteran’s neuroma. The examiner should also comment on the functional impairment associated with the Veteran’s left leg neuroma, to include the impact such has on his daily life and employment. A well-reasoned rationale for all opinions offered must be provided. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G.C., Associate Counsel