Citation Nr: 1807172 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 11-27 080 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine. 2. Entitlement to a rating in excess of 10 percent for left knee strain with left medial meniscus tear. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. McDonald, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from June 2004 to June 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision, of which the Veteran was notified in June 2010, by a Department of Veterans Affairs (VA) Regional Office (RO) that denied entitlement to the benefits currently sought on appeal. The Veteran requested a personal hearing before the Board on a VA Form 9 submitted in August 2011. The requested hearing was scheduled for July 31, 2014, and the Veteran was notified of the date, time and location of the scheduled hearing. The record does not reflect that the Veteran appeared for the scheduled hearing, nor that he requested a postponement of the hearing. In August 2014, however, VA personnel contacted the Veteran by telephone to determine the Veteran's intention with respect to his hearing request. At that time, the Veteran expressed that he no longer desired a hearing and wished for his appeal to proceed to the Board for review. This communication was memorialized in writing with a memorandum to the file. Report of general information, August 2014. On this basis, the Veteran's hearing request is considered withdrawn and the Board will proceed with the appeal. 38 C.F.R. § 20.704(e) (2017). The evidence of record explicitly raises the matter of the Veteran's unemployability. The Board finds this to be part and parcel of the Veteran's claims for increased ratings. However, any determinations with respect to the Veteran's increased rating claims would materially affect a determination as to TDIU. As such, the TDIU issue is inextricably intertwined with the increased rating claims being remanded, and must be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Additional evidentiary development is required before the Board may address the merits of the Veteran's claim. The Veteran was last afforded examinations to establish the severity of his service-connected lumbar spine and left knee disabilities for compensation purposes in July 2014. The Veteran has since asserted that the symptoms of these disabilities have worsened. See Appellant's Brief, December 2017. As such, the Board finds that a contemporaneous examination is now warranted to establish the present severity of the disabilities subject to this appeal. Additionally, at the time of this remand the majority of the relevant documents in the claims file are stored in an older electronic format known as Virtual VA (VVA), or Legacy content. While this type of document remains viewable by the Board, they do present additional difficulties in processing and adjudication of the claim. As such, while the remand is awaiting the development necessary on remand, it would also be advantageous to convert these documents to the newer formatting in the Veterans Benefits Management System (VBMS) if such a conversion is possible. Accordingly, the case is REMANDED for the following action: 1. Obtain any recent VA treatment records not currently associated with the claims file. 2. Contact the Veteran to determine the feasibility of scheduling a VA examination during an active flare up of his lumbar spine and left knee disabilities. Request how frequently he experiences such flare ups, and whether he desires to wait for a flare up to occur to begin the scheduling process, or whether he desires to proceed with scheduling an examination at this time. 3. Schedule the Veteran for examination with a medical professional, or professionals, of sufficient expertise to determine the current severity of his service-connected lumbar spine and left knee disabilities. The electronic claims file should be forwarded to the examiner for review. All indicated studies or tests should be performed. The joints involved should be tested in both active and passive motion, in weight-bearing and nonweight-bearing states, and bilaterally in both left and right knees. 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. The examiner should report the Veteran's range of motion in terms of degrees of flexion and extension, and should comment on any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology, to include whether such is evidenced by visible behavior in response to pressure or manipulation, or other related symptomatology. If the Veteran is not currently experiencing a flare-up of the relevant disabilities during examination, the examiner should elicit from the Veteran a descriptive history of any flare-ups. In so doing, the examiner should inquire as to the frequency, duration, characteristics, severity, and functional loss presented during periods of active flare-ups of the Veteran's lumbar spine and left knee disabilities since December 2009. Based on the history provided by the Veteran, the examiner is asked to estimate the additional functional loss presented during a flare up, in terms of degrees of range of motion, to the extent possible. In rendering the above requested opinion, the examiner should derive his or her estimate from relevant sources within the claims file, including private treatment records and lay statements of the Veteran. It is insufficient to conclude that the requested opinion cannot be rendered without resorting to speculation based solely on the fact that the VA examinations were not performed during a flare-up. The examiner is also expressly asked to identify the types of occupational impairment that currently result from the Veteran's service-connected spine and knee disabilities, as well as the impact that these symptoms have on his ability to perform sedentary and manual employment, as well as activities of daily living. 4. During the processing of the development requested above, if it is feasible, please transfer the electronic documents currently located in the VVA or Legacy content of this Veteran's claims file to the VBMS file format. This is not required for future processing of the Veteran's claim, but will considerably ease future adjudication if it may be accomplished. 5. Undertake any other development deemed warranted, then readjudicate the Veteran's claim, to include entitlement to TDIU. If any of the benefits sought on appeal remain denied, provide the Veteran and his representative with a Supplemental Statement of the Case, then return the case to the Board. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ MICHAEL A. PAPPAS 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).