Citation Nr: 1807714 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 10-22 097 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an evaluation in excess of 60 percent for total left knee arthroplasty since June 1, 2010, exclusive of periods of a temporary total rating. 2. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from March 1996 to July 2001. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the electronic claims file. This case was previously before the Board in February 2013 and May 2016 when it was remanded for additional development. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Veteran is seeking an increased evaluation for his total left knee arthroplasty and entitlement to a TDIU rating. In its January 2018 Appellant Brief, the Veteran's representative argued that the Veteran's most recent VA examination of the knee, performed in June 2016, did not include range of motion findings for passive motion, weight-bearing, and nonweight-bearing in accordance with the holding in Correia v. McDonald, 28 Vet. App. 158, 170 (2016). Accordingly, the Board finds that a remand is required in order to afford the Veteran a new VA examination of his left knee. Id. The Board notes the Veteran did not fully complete the VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, he submitted in December 2014. He stated he last worked in December 2011, but he did not provide the name and address of that employer or any prior employer. The Veteran should be asked to fully complete a VA Form 21-8940 on remand. The Veteran is reminded that failure to cooperate in the development of his claim could result in denial of the claim. See 38 C.F.R. § 3.158; see also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.") Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have treated him for his left knee disability since August 2017. After securing any necessary releases, the AOJ should request any relevant records identified. Updated VA treatment records should also be obtained. If any requested records are unavailable, the Veteran should be notified of such. 2. Ask the Veteran to fully complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to include providing the name and address of his prior employers. Thereafter, the AOJ should request pertinent information from the identified employers. 3. After the above has been completed to the extent possible, schedule the Veteran for a VA examination of the knees to determine the current severity of his service-connected total left knee arthroplasty. The electronic claims file must be made available to the examiner. To the extent possible, range of motion for the right and left knees must be tested actively and passively, in weight-bearing and nonweight-bearing, and after repetitive use. The examiner must also consider whether there is likely to be additional range of motion loss as a result of pain, weakness, fatigability, or incoordination, or during flare-ups. If so, the examiner is asked to describe the additional loss in terms of degrees, if possible. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner must clearly explain why that is so. Any indicated diagnostic tests and studies must be accomplished and the results reported. 4. After undertaking any additional development deemed necessary, the AOJ must readjudicate the claims on appeal. If any claim remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded the requisite opportunity to respond before the case is returned 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). _________________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 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).