Citation Nr: 1808858 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 16-37 039 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a rating higher than 20 percent for right knee status post removal of cyst and lateral meniscus with moderate lateral instability. 2. Entitlement to a rating higher than 10 percent for right knee limitation of motion. 3. Entitlement to a rating higher than 10 percent for left knee strain with arthritis. 4. Entitlement to a rating higher than 10 percent, effective July 5, 2016, for left knee instability. 5. Entitlement to a rating higher than 20 percent for degenerative joint disease and degenerative disc disease of the lumbar spine. 6. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to September 10, 2013, to include on an extraschedular basis. REPRESENTATION Appellant represented by: Nicole Knoll, Agent ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active military service from August 1958 to May 1962. This matter comes to the Board of Veterans' Appeals (Board) from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which, in pertinent part, denied a rating higher than 10 percent for posttraumatic arthritis with limitation of motion of the right knee; denied a rating higher than 10 percent for degenerative joint disease and degenerative disc disease of the lumbosacral spine; denied a rating higher than 20 percent for status post removal of cyst and lateral meniscus of the right knee with moderate lateral instability; and denied a rating higher than 10 percent for left knee strain with arthritis. In his September 2013 notice of disagreement, the Veteran raised the issue of entitlement to a TDIU due to his back and knee disabilities. In a July 2016 rating decision, the RO granted entitlement to a TDIU, effective September 10, 2013. As the issue of TDIU is also considered part of the Veteran's increased rating claim for his back and knee disabilities, which was filed on January 30, 2012, the issue of entitlement to a TDIU, prior to September 10, 2013, is still on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In the July 2016 rating decision, the RO also granted an increased rating of 20 percent for degenerative joint disease and degenerative disc disease of the lumbosacral spine, effective January 30, 2012, the date of the Veteran's claim. The Veteran has not indicated that he is satisfied with this rating. Thus, this claim is still before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In addition, the RO granted a separate rating of 10 percent for left knee instability, effective July 5, 2016. Although the Veteran has not separately appealed this rating, the increased rating claim for the left knee encompasses the separate rating assigned for left knee instability. Thus, the issues are noted as correct on the first page of this decision. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran's last examinations for his back and knee disabilities were in early July 2016. That same month, the United States Court of Appeals for Veterans Claims (Court) issued the opinion of Correia v. McDonald, 28 Vet. App. 158 (2016), which clarifies additional requirements that VA examiners should address when assessing musculoskeletal disabilities, holding specifically, that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing. The July 2016 VA examinations noted that the Veteran had pain on weight-bearing in the lumbar spine and knees, but did not otherwise address whether there was pain on active and passive motion. The Board further notes that more recently in Sharp v. Shulkin, __ Vet. App. __, 2017 WL 3879425 (Sept. 6, 2017), the Court explained that the VA Clinician's Guide instructs examiners when evaluating certain musculoskeletal conditions to obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flare-ups from a veteran, including during flare-ups. The Court explained that case law and VA guidelines anticipate that examiners will offer flare opinions based on estimates derived from information procured from relevant sources, including lay statements of veterans. An examiner must do all that reasonably should be done to become informed before concluding that a requested opinion cannot be provided without resorting to speculation. Thus, another examination is warranted to address the back and knee disabilities in light of recent Court guidance. The issue of entitlement to a TDIU prior to September 10, 2013 is inextricably intertwined with the issues remanded herein, and resolution of the TDIU matter is therefore deferred pending resolution of the increased rating claim for the back and knee disabilities. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ should ask the Veteran to identify any pertinent treatment records pertaining to his back and knee disabilities. 2. The AOJ should secure for the record copies of complete clinical records of all VA treatment the Veteran has received for his back and knee disabilities from July 2016 to present. 3. The AOJ should then arrange for the Veteran to be scheduled for the appropriate VA evaluation to determine the current severity of his degenerative joint disease and degenerative disc disease of the lumbar spine. The appropriate Disability Benefits Questionnaire (DBQ) should be completed. The claims folder and this remand must be made available to the examiner for review, and the examination report must reflect that such a review was undertaken. The examiner must conduct a detailed orthopedic examination including addressing any limitation in range of motion, or ankylosis of the lumbar spine. Pursuant to Correia, supra, examination of a joint must include range of motion testing of the joint in the following areas: • Active motion • Passive motion • Weight-bearing • Nonweight-bearing 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. The examiner should identify and describe in detail all residuals attributable to the Veteran's service-connected lumbar spine disability. The examiner should state whether the Veteran's service-connected lumbar spine disability encompasses intervertebral disc syndrome, and if so, the examiner should document the number of weeks, if any, during the past 12 months, that the Veteran has had "incapacitating episodes," defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The examiner also should conduct range of motion testing of the lumbar spine, specifically noting whether - upon repetitive motion of the Veteran's lumbar spine - there is any pain, weakened movement, excess fatigability, or incoordination on movement, and whether there is likely to be additional range of motion loss due to: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner should also describe whether pain significantly limits functional ability during flare-ups or when the lumbar spine is used repeatedly. 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 should obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flare-ups from the Veteran himself. The examiner should elicit relevant information as to the Veteran's flares with a description of the additional functional loss, if any, the Veteran has during flares. The examiner should estimate the Veteran's functional loss due to flares based on all the evidence of record-including the lay information or sufficiently explain why the examiner cannot do so. The examiner must provide a comprehensive report including complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If the examiner cannot answer the above questions without resorting to speculation or remote possibility, please indicate why that is so. 4. The AOJ should arrange for the Veteran to be scheduled for the appropriate VA examination to assess the current level of severity of his service-connected bilateral knee disabilities. The appropriate Disability Benefits Questionnaire (DBQ) should be completed. The claims folder and this remand must be made available to the examiner for review, and the examination report must reflect that such a review was undertaken. The examiner must conduct a detailed orthopedic examination including addressing any limitation in range of motion, instability, subluxation, or ankylosis of the knee joints. Range of motion testing must be provided on active motion, passive motion, weight-bearing, and nonweight-bearing. If this testing cannot be done, the examiner should clearly explain why this is so. The examiner should obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flare-ups from the Veteran himself. The examiner should identify and describe in detail all residuals attributable to the Veteran's service-connected bilateral knee disability. The examiner also should do the following regarding the bilateral knees: (a) In addressing whether there is recurrent subluxation or lateral instability in the knee, if there is this type of impairment, please state whether it is considered slight, moderate, or severe. (b) Please state whether there is impairment (i.e., malunion) of the tibia and fibula with slight, moderate, or marked, knee or ankle disability; or whether there is nonunion of the tibia and fibula with loose motion requiring brace. (c) If there is any ankylosis of the bilateral knees, please state to what degree. The examiner must provide a comprehensive report including complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If the examiner cannot answer the above questions without resorting to speculation or remote possibility, please indicate why that is so. 5. The AOJ should then review the record and readjudicate the claim. If any claim remains denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (Continued on the next page) 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). S. L. Kennedy 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) (2016).