Citation Nr: 1807522 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-08 377 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial evaluation higher than 20 percent from July 1, 2011 to April 27, 2012, and 10 percent thereafter, for left knee degenerative joint disease. 2. Entitlement to an initial evaluation higher than 10 percent from July 1, 2011 for left knee anterior instability. 3. Entitlement to an increased evaluation for right knee degenerative joint disease, status-post arthrotomy, which is currently evaluated as 20 percent disabling from July 1, 2011, and 10 percent disabling from April 27, 2012 to November 11, 2015. 4. Entitlement to an initial evaluation higher than 30 percent from January 1, 2017, for status-post total right knee replacement. 5. Entitlement to an initial evaluation higher than 10 percent from July 1, 2011 to November 11, 2015 for right knee anterior instability 6. Entitlement to an initial compensable evaluation for right knee surgical scar. 7. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Jonathan Z. Morris, Associate Counsel INTRODUCTION The Veteran had active military service from January 1966 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. A September 2012 rating decision assigned an increased disability rating for service-connected right knee degenerative joint disease (DJD), status-post arthrotomy. This rating decision also granted service connection for left knee DJD, bilateral knee anterior instability, and right knee surgical scar, all secondary to the service-connected right knee DJD. Subsequently, in a December 2016 rating decision, following a November 2015 total right knee replacement, the RO granted service connection for status-post total right knee replacement (previously rated separately as right knee DJD and right knee anterior instability) and assigned a 30 percent disability rating from January 1, 2017. In August 2017, the Veteran testified before the undersigned Veterans Law Judge at a Central Office Board hearing. A transcript of the proceeding is of record. The issue of entitlement to a TDIU was raised by the record as a component of the claim for increase on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board must reconsider this case in light of Correia v. McDonald, 28 Vet. App. 158 (2016). Correia provides a precedential finding that the final sentence of 38 C.F.R. § 4.59 (2015) requires VA examinations to include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The Board has reviewed the findings from the Veteran's November 2016 VA compensation examinations for his service-connected bilateral knee disabilities and sees that these findings do not meet the specifications of Correia. Specifically, the examiners did not address whether the range-of-motion testing was conducted on active or passive motion and weight-bearing or nonweight-bearing. Given this, the Board is not satisfied that the examination findings are adequate for determining whether the existing ratings for these disabilities should be increased. Therefore, an additional examination is necessary under 38 C.F.R. § 3.159(c)(4). See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (Once VA undertakes the effort to provide an examination, even if not statutorily obligated to, it must provide an adequate one, else, notify the claimant why one cannot or will not be provided). The Board notes that the claim of entitlement to a TDIU is derivative of these increased rating claims on appeal, so "inextricably intertwined", and, therefore, must be deferred pending resolution of these other claims. Harris v. Derwinski, 1 Vet. App. 180 (1991); Rice v. Shinseki, 22 Vet. App. 447 (2009). Additionally, while on remand, the AOJ should obtain the records of all relevant treatment the Veteran has received (the records of which have not already been obtained, so they, too, may be considered). Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center(s) and obtain all outstanding treatment records if relevant to these claims. Also, ask the Veteran to provide, or authorize VA to obtain, all relevant private medical records that have not been obtained. All efforts to obtain these records must be documented in the claim file and the Veteran properly notified if unable to obtain identified records. 38 C.F.R. § 3.159(c) and (e). 2. After all available treatment records have been obtained and associated with the claims file, schedule the Veteran for a VA compensation examination reassessing the severity of his bilateral (left and right) knee disability. His claims file, including a complete copy of this remand, must be made available to the examiner for review of the history of this disability. Following review of the evidence of record, the clinical examination results, and the Veteran's statements, the examiner must: (a) Conduct any indicated diagnostic tests that are deemed necessary for an accurate assessment, including an analysis of any additional disability due to pain, weakness, premature or excess fatigability, or incoordination, such as during prolonged, repeated use or during "flare ups". The examiner should report (in degrees) the point at which pain is objectively recorded. These determinations, if feasible, should be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups or prolonged use. This information must be derived from testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing. The examination report must confirm that all such testing has been done and reflect the results of the testing. If the examiner is unable to perform the required testing or concludes the testing is unnecessary, he or she must clearly explain why that is so. (b) Describe any recurrent subluxation or lateral instability, including whether it is slight, moderate, or severe. Also, discuss any symptoms associated with cartilage impairment that is related to the bilateral knee disability, including whether there are frequent episodes of "locking," pain, and effusion into the knee joint. (c) The examiner should also evaluate any and all right knee and left knee scarring and assess the current severity of the disability. In addition to conducting regular testing, the examiner should identify and numerate any and all scars in these areas and opine as to whether such scars are linear, superficial, deep, painful, unstable, and/or exhibit any other disabling effects. (d) As well, comment on what limitations in physical and/or sedentary work environments might be expected (based on the Veteran's employment history and training) with respect to his bilateral knee disabilities. The examiner must provide a complete rationale for all opinions given, preferably citing to clinical findings or other medical authority. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must explain why a more definitive response is not possible or feasible. In other words merely saying he or she cannot respond will not suffice. 3. Ensure the requested examination reports are responsive to the applicable rating criteria and questions asked. If they are not, obtain all necessary additional information. Stegall v. West, 11 Vet. App. 268, 271 (1998); 38 C.F.R. §4.2. 4. Request that the Veteran complete and return VA Form 21-8940 (an official TDIU application), providing his employment history with salary information and average hours worked, etc., since June 1, 2011. 5. After completing this and all other development deemed necessary, readjudicate the claims in light of all additional evidence. If these claims are denied, or are not granted to the Veteran's satisfaction, send him and his representative another SSOC and give them time to respond to it before returning the file to the Board for further appellate consideration of these claims. 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ M. H. Hawley Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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).