Citation Nr: 1808699 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 05-20 530 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease, status post medial and lateral meniscectomy, of the left knee. 2. Entitlement to an effective date earlier than January 15, 2004, for the grant of service connection for degenerative joint disease, status post medial and lateral meniscectomy, of the left knee. 3. Entitlement to a total rating based on individual unemployability due to service connected disability (TDIU). WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Saudiee Brown, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1967 to December 1970. These matters come before the Board of Veterans' Appeals (Board) from November 2004 and May 2007 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Board previously remanded these matters in February 2016 and provided a corrected order for a separate issue in December 2016. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in April 2013. A transcript of the hearing is of record. The Board notes that the RO has raised an issue of left leg atrophy due to the Veteran's service-connected degenerative joint disease, status post medial and lateral meniscectomy, of the left knee in its November 2017 rating decision, stating that this issue could not be addressed as it was currently under appeal. However, the Board finds that this issue seems to be part of the Veteran's increased rating claim for his left knee based on his description of symptoms in his April 2015 notice of disagreement and October 2017 VA Form 9. Therefore, the Board will not address this as a separate issue at this time. In addition, the Board notes that the Veteran's October 2017 VA Form 9 states that he should be awarded an earlier effective date for his service-connected posttraumatic stress disorder (PTSD). However, the RO has not yet adjudicated this issue and therefore it is not before the Board at this time. The Board requests that the RO determine whether the Veteran would like to file a claim for this issue and provide him with the necessary documents to do so. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Regrettably the Board must remand these matters for additional development. Regarding the Veteran's earlier effective date claim, in January 1971 the Veteran filed a claim for a left knee disability. An April 1971 letter from the RO denied the Veteran's claim because he failed to report to his May 6, 1971 VA examination. The Veteran requested that an exam be rescheduled on May 7, 1971. A July 1971 letter from the RO denied the Veteran's claim because his rescheduled May 20, 1971 VA examination did not note any residuals of a knee injury. However, the Board notes that the May 20, 1971 VA examination record is missing from the file. This evidence is relevant in determining whether the Veteran should be awarded an earlier effective date for his service-connected degenerative joint disease, status post medial and lateral meniscectomy, of the left knee. Further, an additional VA examination is needed to take into account the Correia factors. See Correia v. McDonald, 28 Vet. App. 158 (2016). The Board notes that the Veteran was provided an August 2017 knee VA examination. In addition, the Board also notes that at the end of the examination, the examiner stated that there was objective evidence of pain on passive range of motion testing of the left knee. There was no evidence of pain on non-weight bearing testing of the left knee. However, the Board finds that the examiner did not record these range of motion results. Thus, the Board finds the August 2017 VA examination inadequate and a new VA examination is necessary. Overall, based on the outcome of locating the May 20, 1971 VA examination, the RO's decision whether to grant an earlier effective date, and the Veteran's claim for a rating in excess of 10 percent for the Veteran's degenerative joint disease, status post medial and lateral meniscectomy, of the left knee, his claim for TDIU is inextricably intertwined. Thus, these matters must be remanded so that the RO can locate the May 20, 1971 VA examination and associate that with the file. An additional knee VA examination must also be provided. The RO must then readjudicate the additional claims taking into consideration the most recent evidence of record including the Veteran's lay statements. Accordingly, the case is REMANDED for the following actions: 1. Obtain any outstanding private or VA treatment records. Request that the Veteran assist with locating these files, if possible. Specifically, the RO should locate the May 20, 1971 VA examination for the Veteran's left knee disability. If the RO cannot locate the file, it must specifically document the attempts that were made to locate it, and explain in writing why further attempts to locate or obtain this government record would be futile. The RO must then: (a) notify the Veteran of the specific record it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The Veteran must then be given an opportunity to respond. 2. Then schedule the Veteran for a VA examination to determine the current severity of the Veteran's degenerative joint disease, status post medial and lateral meniscectomy, of the left knee. Pursuant to Correia, the examiner should record the results of range-of-motion testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing for the left knee. 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. In recording ranges-of-motion for the Veteran's left knee, the examiner should note whether, upon repetitive motion, there is any pain, weakened movement, excess fatigability, or incoordination of movement, and whether there is likely to be additional functional loss due to pain on use, weakened movement, excess fatigability, or incoordination over time. If there is no pain, no limitation of motion, and/or no limitation of function, such facts must be noted in the report. The examiner must note that the record was reviewed. The examiner must provide a complete rationale for any opinion expressed. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range-of-motion loss. If this is not feasible to determine without resort to mere speculation, the examiner must provide an explanation for why this is so. The examiner must also address the Veteran's service-connected disability on his ability to obtain substantially gainful employment. 3. Thereafter, readjudicate the issues. If the decision remains unfavorable, then the RO should send the Veteran a supplemental statement of the case and afford him an opportunity to respond before the case is returned 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 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 MARTIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board 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).