Citation Nr: 1808796 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 14-11 847 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to a rating in excess of 10 percent for left knee traumatic arthritis with Osgood-Schlatter disease (left knee disability), effective February 13, 1995. 2. Entitlement to service connection for spondylosis, post laminectomy, claimed as a back condition, to include as secondary to a left knee disability. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Connally, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had service from March 1964 to January 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran requested to appear at a Travel Board hearing, but submitted timely correspondence in August 2014 to withdraw this request. The request is deemed withdrawn and the Board may proceed with adjudication. 38 C.F.R. § 20.704(d) (2017). The Board notes that the TDIU issue was not expressly raised in prior rating decisions, but finds that the issue is reasonably raised by the record. Specifically, during the 2011 VA examination the Veteran indicated he was a retired truck driver and had been unemployed for 10 years. Significantly, in describing the effects of his condition, the examiner noted that the Veteran is unable to drive because of generalized weakness of the legs and incoordination. Thus, the Board finds that the record raises the issue of TDIU. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is required in this case. The VA examinations of record are insufficient for determining the proper disability ratings for the Veteran's left knee disability based on the recent holding of the Court of Appeals for Veterans Claims (Court) in Correia v. McDonald, 28 Vet. App. 158 (2016). The Court held that 38 C.F.R. § 4.59 requires VA examinations for musculoskeletal disabilities to include joint testing for pain on both active and passive motion, in weight bearing and nonweight bearing. However, the examinations of record with respect to the disabilities on appeal do not meet these requirements. Accordingly, remand is warranted so that a new examination may be conducted and, if possible, an opinion may be obtained with respect to the findings of previous examinations. Based on the foregoing, the Board is not satisfied that the examination findings are adequate for a contemporaneous rating. Therefore, an additional examination is necessary under 38 C.F.R. § 3.159(c)(4) (2017). VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2; see 38 C.F.R. § 19.9. Where the Board makes a decision based on an examination report that does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). In light of the foregoing, the Board finds that additional examinations are warranted. Furthermore, the Board notes that the May 2011 VA examination contains an inadequate medical opinion regarding the issue of service connection for a claimed back condition. Once VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examination medical opinion failed to discuss whether the Veteran's claimed back condition was aggravated by his left knee disability. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (holding that a medical opinion that focuses solely on causation is inadequate to address whether a service-connected disability aggravated another condition). Without further clarification, the Board is without medical expertise to determine the nature and etiology of the claimed back condition. Colvin v. Derwinski, 1 Vet. App. 171 (1991). A review of the Veteran's claims file indicates that he has received Social Security Administration (SSA) benefits. It is not clear from the record whether his SSA income is based on disability or age-related retirement. VA has a duty to assist in the procurement of relevant records. 38 C.F.R. § 3.159. Furthermore, the records may potentially be relevant to the claimed disabilities. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (VA has an obligation to secure Social Security Administration records if there is a reasonable possibility that the records would help to substantiate the Veteran's claim). As it is not clear what the SSA records contain, if any, the Board finds that it is inappropriate at this time to adjudicate the claims, and will instead remand them. Additionally, on remand updated VA treatment records should be obtained as the most recent ones associated with the claims file are from 2014. The Board notes that the issue of entitlement to a total disability rating based on individual unemployability cannot be adjudicated until the other issues are addressed because they are intertwined. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Accordingly, the case is REMANDED for the following action: 1. The AOJ should secure from SSA a copy of their decision on the Veteran's claim for such benefits and copies of all records considered in connection with the determination on the claim. All efforts to obtain such SSA records should be fully documented, and a negative response must be provided if records are not available. 2. Obtain updated VA treatment records since 2014. 3. Schedule the Veteran for a VA knee examination. The examiner should describe in detail the current status of the service-connected left knee disability and all related manifestations. The examiner should test and record range of motion in active motion, passive motion, weight bearing, and nonweight bearing, if applicable. 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. a) The VA examiner should indicate all present symptoms and manifestations from the Veteran's service-connected left knee disability, as rated according to manifestation of limitation of motion. b) The examiner should report complete range of motion findings for the left knee. Range of motion measurement should be provided in active motion, passive motion, weight-bearing and nonweight-bearing positions (as appropriate). 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. 4. Obtain a VA examination opinion (or schedule another VA examination if necessary) regarding the nature and etiology of the claimed back condition, to include as secondary to service-connected left knee disability. The claims folder should be made available to the examiner for review before the examination a) The examiner is asked to determine whether the Veteran's claimed back condition is at least as likely as not (50 percent probability or greater) aggravated by the service-connected left knee disability. A complete rationale for all opinions must be provided. 5. After completing the above and conducting any additional development deemed necessary, readjudicate the claims on appeal in light all additional evidence received. If any benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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 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). _________________________________________________ H. SEESEL 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).