Citation Nr: 20002269 Decision Date: 01/10/20 Archive Date: 01/09/20 DOCKET NO. 17-43 236 DATE: January 10, 2020 REMANDED The issue of entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. The issue of entitlement to an initial rating in excess of 10 percent for a right knee disability is remanded. The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1974 to March 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. A May 2013 rating decision, in pertinent part, granted entitlement to service connection for PTSD and a right knee disability and assigned disability ratings of 50 percent and 10 percent respectively. The Veteran did not submit an explicit notice of disagreement with the May 2013 rating decision; however, in August 2013, he submitted a claim of entitlement to a TDIU due to his service-connected PTSD and right knee disability, which the RO construed as a claim for increased ratings. In connection with this claim, the Veteran underwent a December 2013 VA examination of the right knee, and the RO obtained updated treatment records showing treatment for PTSD. In an April 2014 rating decision, the RO continued the 50 percent rating for PTSD, continued the 10 percent rating for a right knee disability, and denied entitlement to a TDIU. The Veteran timely perfected an appeal as to the ratings assigned for PTSD and a right knee disability, as well as the denial of entitlement to a TDIU. See March 2015 Notice of Disagreement; June 2017 Statement of the Case; August 2017 VA Form 9. In Buie v. Shinseki, 24 Vet. App. 242 (2010), the Court held that even in increased ratings claims, when VA receives a submission of new and material evidence within one year of a rating decision addressing the condition, 38 C.F.R. § 3.156 (b) requires any subsequent decision to relate back to the original claim. Id. at 251-52; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (holding that 38 C.F.R. § 3.156 (b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence relevant to a pending claim, even if the new submission may support a new claim). In this case, although the Veteran did not express disagreement with the initial ratings assigned in the May 2013 rating decision, new and material evidence regarding the claimed disabilities was received within the appeal period after the May 2013 rating decision, and thus, that rating decision did not become final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (b), 20.201. Therefore, the Board finds that the PTSD and right knee rating issues are properly characterized as appeals of the initial ratings assigned in the May 2013 rating decision. In September 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been prepared and associated with the record. The Veteran asserts that his PTSD warrants a disability rating greater than the 50 percent evaluation currently assigned. During the September 2019 Board hearing, the Veteran asserted that his PTSD symptoms have increased in severity since he was last examined by VA in 2013. As the last examination of record is dated over six years ago, and there is suggestion of worsening of disability, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his service-connected PTSD. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (“Where the appellant complained of increased hearing loss two years after his last audiology examination, VA should have scheduled the appellant for another examination.”); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining that Board should have ordered contemporaneous examination of Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). The Veteran asserts that his right knee disability warrants a disability rating greater than the 10 percent evaluation currently assigned. The Veteran was last afforded a VA examination to assess the severity of his service-connected right knee disability in August 2018, which is relatively recent. However, during the September 2019 Board hearing, the Veteran alleged increasing right knee symptoms since he was last examined. Moreover, the August 2018 VA examination report is not clear as to whether the Veteran experiences additional functional loss during repetitive use and/or during flare-ups, and, if so, to what degree. See Sharp v. Shulkin, 29 Vet. App. 26, 34-35 (2017) (holding that the Board erred when it relied on a medical opinion that an estimate of range-of-motion loss during a flare-up or after repeated use over time was not possible without observing function under those circumstances). Therefore, the Board finds that a remand is necessary to afford the Veteran a new VA examination to determine the current severity of his service-connected right knee disability. With respect to the Veteran’s TDIU claim, the Board notes that, because adjudication of the Veteran’s increased rating claims remanded herein will impact adjudication of his TDIU claim, these claims are inextricably intertwined. Thus, the TDIU issue will be held in abeyance pending the completion of the development directed herein. See Harris v. Derwinski, 1 Vet. App. at 183 (1990) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Lastly, as the record reflects ongoing VA treatment for the issues on appeal, updated treatment records should be obtained on remand. The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran’s claims file any outstanding VA treatment records documenting treatment for the issue on appeal. The Veteran should also be afforded the opportunity to identify and submit any outstanding private treatment records. 2. After all available records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his service-connected PTSD. The claims file, to include a copy of this remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. Any indicated evaluations, studies, and tests should be conducted. All signs, symptoms, and manifestations of the Veteran’s PTSD should be noted. The examiner should fully describe the effects of the Veteran’s PTSD on his occupational and social functioning. 3. After all available records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his service-connected right knee disability. The claims file must be made available to the examiner for review in conjunction with the examination, and the examination report must reflect that review was accomplished. All indicated tests should be performed and all findings should be reported in detail. The examiner should describe the nature and severity of all manifestations of the Veteran’s right knee disability. In this regard, the examiner should record the range of motion observed on clinical evaluation, in terms of degrees of flexion and extension. If there is clinical evidence of pain on motion, the examiner should indicate the degree of flexion and/or extension at which such pain begins. Then, after reviewing the Veteran’s complaints and medical history, the examiner should render an opinion, based upon his or her best medical judgment, as to the extent to which the Veteran experiences functional impairments such as weakness, excess fatigability, incoordination, or pain due to repeated use or flare-ups, and should portray these factors in terms of degrees of additional loss in range of motion (beyond that which is demonstrated clinically), if feasible. In order to comply with the Court’s recent precedential decision in Correia v. McDonald, the examiner must test and record the range of motion for both knees in active motion, passive motion, weight-bearing, and 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 also express an opinion concerning whether there would be additional functional impairment, such as weakness, excess fatigability, incoordination, or pain, on repeated use or during flare-ups. The examiner should portray these factors in terms of degrees of additional loss in range of motion (beyond that which is demonstrated clinically), if feasible. If the Veteran denies any additional pain and/or functional limitation during flare-ups or with repeated use over time, such should be noted in the report. However, if the Veteran is not currently experiencing a flare-up and/or if the Veteran has not been evaluated after repeated use over time, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss, the examiner is requested to provide an estimate of the Veteran’s functional loss due to flares or after repeated use over time expressed in terms of the degree of additional range of motion lost, or explain why he or she cannot do so. If the examiner is unable to estimate functional loss in terms of degrees after physical examination and eliciting the pertinent information discussed above, he or she must explain why and may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up or after repeated use over time. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Additionally, the examiner should determine whether the Veteran has ankylosis of the right knee; instability or subluxation of the right knee; nonunion of the tibia and fibula with loose motion and requiring knee braces; dislocated semilunar cartilages with frequent episodes of locking, pain, and effusion; or severe painful motion or weakness in the right knee. Finally, the examiner should discuss the impact, if any, as well as a full description of the effects, that the Veteran’s knee disability has upon his ability to perform ordinary activities of daily living. The examiner should conduct any appropriate tests and studies in order to determine the nature and extent of the social and industrial impairment attributable to the service-connected right knee disability. The examiner must provide a rationale for each of the opinions that takes into account the Veteran’s reports of his history and his current symptoms. The reasons and bases for each opinion are to be fully explained with a complete discussion of the evidence of record and sound medical principles, which may reasonably explain the medical guidance in the study of this case. 4. Following the completion of the foregoing, and any other development deemed necessary, the AOJ should readjudicate the Veteran’s claim. If the claim is denied, supply the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Kipper, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.