Citation Nr: 1808363 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 11-19 386 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an increased rating in excess of 30 percent for right shoulder degenerative joint disease. 2. Entitlement to an initial increased rating in excess of 10 percent for right knee degenerative arthritis, status post meniscectomy. 3. Entitlement to an initial compensable rating prior to January 20, 2012, and in excess of 10 percent thereafter, for left knee degenerative arthritis. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to July 9, 2013. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. Mine, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1984 to January 1987; December 2003 to November 2004; and from January 2007 to February 2010. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). The RO originally granted service connection for the Veteran's right shoulder in a June 2006 rating decision with a 20 percent disability rating. However, the rating was discontinued on January 25, 2007, when the Veteran re-entered active duty service. In the October 2010 rating decision, currently on appeal, the RO granted an increased rating of 30 percent for the right shoulder disability, effective March 8, 2010. In a subsequent June 2011 rating decision, the RO granted an earlier effective date of February 16, 2010, for the 30 percent rating. Further, the RO granted service connection for the Veteran's bilateral knee disability in the October 2010 rating decision, assigning a 10 percent disability rating for his right knee and a noncompensable rating for his left knee. In a later July 2012 rating decision the RO granted a 10 percent rating for the left knee effective January 20, 2012. As the highest possible rating for his disabilities have not been assigned, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993). Finally, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans' Claims held, in substance, that every claim for a higher disability rating includes a claim for a TDIU where a veteran asserts that his service-connected disability prevents him from working. While the RO has granted TDIU effective July 9, 2013, a claim for entitlement to TDIU is raised by the record prior to that date. Accordingly, the Board has characterized the issues on appeal to include a claim of entitlement to a TDIU. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In a December 2017 brief, the Veteran's representative argued that the Veteran should be afforded new VA examinations, asserting in part that the prior VA examinations did not comply with the holding in Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). The Veteran last had a VA shoulder examination in October 2013 and a VA knee examination in May 2013. However, the examiners did not document range of motion testing in active motion, passive motion, weight-bearing, and non-weight-bearing. See 38 C.F.R. § 4.59; Correia, 28 Vet. App. at 169-70 (2016). Additionally, evidence added to the claims file since the issuance of the most recent SSOC indicates the Veteran's bilateral knee condition has worsened since the last VA examination. For example, during a May 2016 VA orthopedic consultation the Veteran was noted to have pain on extension with resistance, a May 2017 VA treatment record indicates that the Veteran's knee pain was uncontrolled and his pain medication was increased, and an October 2017 VA treatment record indicates that the Veteran had decreased strength due to pain and was using a cane for ambulation, none of which were present during the prior VA examination. As such, the Veteran must be afforded updated VA examinations. As any increase in the Veteran's service-connected disabilities could affect his entitlement to TDIU, the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). For this reason, the Board will defer consideration of the Veteran's TDIU claim until he has been provided the required additional VA examinations. See id. Further, in an October 2013 statement the Veteran reported he began receiving Social Security Administration (SSA) disability benefits in July 2012. An October 2013 SSA letter confirms that the Veteran is entitled to monthly disability benefits. In this case while it not clear whether or not the SSA records are pertinent to the Veteran's claims for increased ratings they do appear to be pertinent to his claim for TDIU. Therefore, because no SSA records are associated with the record, the RO must contact SSA and obtain the Veteran's complete SSA records, including any administrative decision on his application for SSA disability benefits and all underlying medical records. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from private or VA health care providers. 2. Obtain complete SSA disability records for the Veteran, to include underlying medical records upon which any SSA disability decision was based. A copy of any records obtained from SSA, to include a negative reply if applicable, should be included in the claims file. If such records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 3. After undertaking the development listed above to the extent possible, schedule the Veteran for VA examinations with a medical professional of sufficient expertise to determine the current severity of the Veteran's service-connected right shoulder, right knee, and left knee disabilities. The claims file must be made available to and reviewed by the examiner, and a note that it was reviewed should be included in the report. After reviewing the claims file and examining the Veteran, the examiner should specifically address the following: a) Range of motion testing should be undertaken, to include after repetitive use. The examiner is to report the range of motion measurements in degrees. The examiner should consider whether there is likely to be additional range of motion loss due to any of the following: (1) during flare-ups; (2) after repetitive use over time; (3) in weight bearing; and (4) as a result of pain, weakness, fatigability, or incoordination. The examiner should also address whether there is a difference in active range of motion, versus passive range of motion. If so, the examiner is asked to describe the additional loss, in degrees, if possible. In any event, the examiner should fully describe the any associated functional limitations. b) The examiner should specifically offer an opinion as to the impact of any functional loss due to pain during flare-ups, considering all procurable and assembled data, and by obtaining all tests and records that might reasonably illuminate the medical analysis. The examiner must, at a minimum, ask the Veteran to describe the severity, frequency, duration, or functional loss manifestations related to flare-ups. c) The examiner should specifically offer an opinion as to the impact of repetitive use over time on his functional ability. If the examiner deems it necessary, the Veteran should be asked to engage in repetitive use over time prior to the examination. A detailed rationale for the opinion must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. After all necessary development has been completed, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, furnish a supplemental statement of the case. The Veteran and his representative should be afforded the applicable time to respond. 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). These claims 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 LANE 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).