Citation Nr: 1823014 Decision Date: 04/16/18 Archive Date: 04/25/18 DOCKET NO. 12-26 262 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for left knee traumatic arthritis. 2. Entitlement to a disability rating in excess of 10 percent for left knee status post medial meniscectomy with instability. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Delhauer, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1968 to February 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office. In May 2014, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. These matters were remanded by the Board in September 2015 for further development. In the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is part and parcel of an increased rating claim when such claim is raised by the record. The Veteran has indicated that he cannot work due to his service-connected left knee disabilities. See, e.g., January 2011 notice of disagreement and Veteran statement. Accordingly, the Board has characterized the issues on appeal so as to include a claim for 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 The Veteran contends he is entitled to increased disability ratings for his service-connected left knee disabilities because of knee stiffness and swelling in the morning, and increased swelling and weakness, particularly at the end of an active day, which has led his left knee to fail and caused him to fall. The Veteran contends that his VA examinations have not tested his knee after a prolonged day of normal activities to determine his limitations, including weakness and instability. See, e.g., September 2012 VA Form 9. The Veteran was last afforded a VA examination of his left knee in January 2016. The VA examiner noted the Veteran's reports of flare-ups and functional impairment of the left knee, including easy fatigue, instability, pain, and limited range of motion. The VA examiner stated the Veteran was not examined during a flare-up or immediately after repeated use over time, and that the examination was neither medically consistent with or inconsistent with the Veteran's statements describing functional loss. The examiner stated it would be impossible without resorting to mere speculation to indicate any additional range of motion loss, compared to the examination findings, during a flare-up or over a period of time. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that examiners have to offer opinions with respect to the additional limitation of motion during flare-ups based on estimates derived from information procured from relevant sources, including a veteran's lay statements. The Court explained that an examiner must do all that reasonably could be done in order to become informed before concluding that a requested opinion cannot be provided without resorting to speculation. The Court held in that case that the VA examination was inadequate because the examiner, although acknowledging that the veteran in that case was not suffering from a flare-up at the time of the examination, failed to ascertain adequate information such as frequency, duration, characteristics, severity, or functional loss regarding flare-ups in order to provide the requested opinion. The Board finds the January 2016 VA examination report in this case presents similar facts to the Sharp case. The January 2016 VA examiner failed to ascertain adequate information from the record regarding how factors such as pain, weakness, and/or fatigability limit the Veteran's functional ability of the left knee during flare-ups and/or following repetitive use over time. Further, during an October 2013 VA examination lateral instability of the left knee was noted on all tests performed, and an October 2013 addendum opinion indicates the instability was related to the Veteran's service-connected left knee disabilities. During the January 2016 VA examination, the examiner stated there was no instability of the left knee upon testing, and although the examiner noted the Veteran's reports of instability in his left knee, the previous examination findings regarding instability were not addressed. Accordingly, on remand, the AOJ should afford the Veteran a new VA examination to determine the current manifestations and severity of his service-connected left knee disabilities, to include adequate discussions of functional loss due to flare-ups and repeated use over time, and any instability. As a new examination is necessary, on remand the AOJ should also obtain any outstanding relevant treatment records. Finally, on remand the AOJ should provide the Veteran with notice regarding the claim for TDIU, and undertake appropriate development to obtain any additional evidence pertinent to the TDIU claim. Accordingly, the case is REMANDED for the following action: 1. The AOJ should provide the Veteran and his representative with notice regarding his TDIU claim. 2. The AOJ should undertake any necessary development to obtain any additional evidence pertinent to the Veteran's TDIU claim. All records and responses received should be associated with the evidentiary record. 3. The AOJ should ask the Veteran to identify any outstanding non-VA testing and/or treatment related to his left knee. The AOJ should undertake appropriate development to obtain any outstanding treatment records pertinent to the Veteran's claim. The Veteran's assistance should be requested as needed. All obtained records should be associated with the evidentiary record. The AOJ must perform all necessary follow-up indicated. If any records are not available, or a negative response is received, the AOJ should advise the Veteran and his representative of the status of his records, and give the Veteran the opportunity to obtain the records on his own. 4. The AOJ should obtain any outstanding VA treatment records, to include from January 2016 to the present. All obtained records should be associated with the evidentiary record. 5. After #3 and #4 have been completed, and after any records obtained have been associated with the evidentiary record, the Veteran should be afforded a VA examination with an appropriate examiner to determine the current severity of his service-connected left knee disabilities. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. A complete history should be elicited directly from the Veteran, and any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. After the record review, and a thorough examination and interview of the Veteran, the VA examiner should offer his/her opinions with supporting rationale as to the following inquiries: a) The examiner should describe all pertinent symptomatology associated with the Veteran's left knee disabilities. b) The extent of any incoordination, weakened movement, and excess fatigability on use should be described by the examiner. If feasible, the VA examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. c) The examiner should express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups, and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. The VA examiner should put forth best efforts in estimating the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss based on all information procured from relevant sources, including the Veteran's lay statements. If the VA examiner is unable to report the degree of additional range of motion loss during a flare-up or on repeated use, the VA examiner must explain why it is not feasible to render such an opinion; however, the VA examiner should not provide as reason that at the time of the examination, the Veteran is not experiencing a flare-up or being observed after repeated use over time. d) The examiner should address the Veteran's reports of his left knee giving out or failing, leading to falls, as well as the objective findings of lateral instability upon VA examination in October 2013. See also January and March 2011 VA orthopedic visit notes (positive McMurray tests). A detailed rationale for the opinions must be provided. If the examiner is unable to offer a 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. 6. After the above development has been completed, adjudicate the TDIU claim pursuant to 38 C.F.R. § 4.16, including whether the requirements for invoking the procedures for referral to the VA Director of Compensation pursuant to 38 C.F.R. § 4.16(b) have been met. 7. After the above development has been completed, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case, and 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ C. TRUEBA 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).