Citation Nr: 1808125 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-20 729 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 60 percent prior to August 21, 2012, and in excess of 30 percent from October 1, 2013 for a right knee disability, status post right total knee arthroplasty. 2. Entitlement to a rating in excess of 30 percent prior to May 1, 2014, and in excess of 30 percent from July 1, 2015 for a left knee disability, status post left total knee arthroplasty. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Charles D. Romo, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Cheng, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1968 to April 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. During the course of the appeal, on two separate occasions, the RO granted a temporary 100 percent disability rating based on convalescence following the Veteran's surgeries on the left and right knees. During the relevant period currently on appeal, the Veteran was granted a temporary 100 percent disability rating in the right knee, effective August 21, 2012 to September 30, 2013, as well as in the left knee, effective May 1, 2014 to June 30, 2015. However, as higher disability ratings are available for the Veteran's knees, both before and after each convalescent period, the claim for higher disability ratings for the right and left knee disabilities remain viable on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board has thus re-characterized the issues as shown on the title page. The Veteran testified before the undersigned at a Travel Board hearing held in July 2017. A transcript of the hearing has been associated with the Veteran's claims file. The Board notes that during the July 2017 Board hearing, the Veteran had indicated a possible issue of propriety as to a rating reduction for the Veteran's service-connected right knee disability. Specifically, the Veteran, through his representative, had reported that he had a 60 percent rating in the right knee effective January 31, 2012, and then he was given a temporary 100 percent rating after his right knee surgery effective August 21, 2012, and then subsequently given a 30 percent rating effective October 1, 2013. The Veteran disagreed with the October 2012 rating decision that assigned the 30 percent rating, effective October 1, 2013, since he had a 60 percent rating for his right knee disability immediately preceding the temporary 100 percent rating. However, the Board notes that the Veteran's case does not involve a rating "reduction". The rating decision of October 2012 applied a staged rating in deciding the Veteran's March 2012 claim for an increased rating. Specifically, the RO determined that the Veteran's service-connected right knee disability met the criteria for a 60 percent disability rating prior to August 21, 2012, but from October 1, 2013 met the criteria for only a 30 percent rating. In O'Connell v. Nicholson, 21 Vet. App. 89, 93 (2007), the United States Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.105 does not apply when the Board assigns a higher rating for one period of time and a lower rating for a later period of time. In Singleton v. Shinseki, 23 Vet. App. 376 (2010), the Court extended this reasoning to 38 C.F.R. § 3.344. Thus, properly understood, the RO's action was a staged rating and not a rating reduction. A staged rating, such as the one applied by the RO in this case, is appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). As such, there is no rating reduction claim to be addressed here and the increased staged rating claim for the service-connected right knee has been remanded for additional development as detailed below. The Board also notes that during the July 2017 Board hearing, the Veteran had indicated there were several issues, to include a low back disorder, diabetes mellitus, and peripheral neuropathy of the bilateral lower extremities, not yet addressed by the RO. However, a review of the claims file shows a December 2014 rating decision denying these service connection claims and a notification letter regarding the December 2014 rating decision was sent in December 2014. There was no indication of undeliverable returned mail. There was no response or notice of disagreement from the Veteran submitted within a year from the date of the notification letter. The only correspondence related to these issues was a December 2015 inquiry from the Veteran's representative as to the status of these issues. As such, the Board finds that the December 2014 rating decision has been finalized and notes that if the Veteran wishes to file a formal claim to reopen these aforementioned issues, he should do so. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The record shows that the Veteran was last afforded a VA examination of the service-connected right knee and left knee disabilities in October 2012. Review of the claims file, to include statements and VA treatment records, dated since the VA examination until 2014 indicate worsening of the service-connected bilateral knee disability since that last examination. Specifically, in a May 2014 VA treatment record showed the Veteran had undergone a failed left total knee arthroplasty. The record noted the Veteran had a history of left total knee arthroplasty done some years ago but that he has had continued pain in his left knee and increasing instability. Also, during the July 2017 Board hearing, the Veteran indicated he has had numerous surgeries on both knees and that the Veteran had been provided with a motorized vehicle for his knees after there was no improvement subsequent to the May 2014 left knee surgery due to instability. The Veteran also reported that he wore knee braces for walking. The Veteran indicated that both of his knee disabilities have worsened significantly since their respective surgeries in May 2014 and August 2012, to include increased instability. A review of the October 2012 VA examination noted that on stability testing, both knees were found as normal. VA's duty to assist includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d). VA is required to conduct an accurate and descriptive medical examination based on the complete medical record. 38 C.F.R. §§ 4.1, 4.2; Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Because of the evidence of worsening symptoms since the last examination, a new examination is needed to determine the current severity of the service-connected right knee and left knee. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The Board further notes that a remand is required for the increased rating claims for the service-connected right knee and left knee in light of Correia v. McDonald, 28 Vet. App. 158 (2016). In particular, the Board notes that findings from the October 2012 VA examination appear insufficient to assess the Veteran's motion in passive motion, and (where relevant) weight-bearing and nonweight-bearing settings. Accordingly, the Veteran should be afforded another VA examination to assess the current nature and severity of the right and left knee disabilities. See Correia v. McDonald, 28 Vet. App. 158 (2016). The Board also finds that the claim of entitlement to a TDIU is inextricably intertwined with the pending claims for increased ratings for a right knee and a left knee disability because an allowance of those claims could change the outcome of the TDIU claim. The appropriate remedy for inextricably intertwined issues it to remand them pending resolution of the inextricably intertwined issues. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. With any necessary identification of sources and authorization by the Veteran, obtain all outstanding VA and private treatment records and associate them with the claims file. 2. Schedule the Veteran for a VA examination to determine the current severity of the service-connected right knee and left knee disabilities. The electronic claims file should be accessible to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for the opinion expressed must be provided. The examiner must utilize the appropriate Disability Benefits Questionnaire. Additionally, the examiner must test the range of motion in active motion, passive motion, and (where appropriate) weight-bearing and nonweight-bearing settings. 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. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case, allow the applicable time for response, and then return the case to the Board. The Veteran 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). _________________________________________________ THOMAS H. O'SHAY 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).