Citation Nr: 20006763 Decision Date: 01/29/20 Archive Date: 01/27/20 DOCKET NO. 15-46 109 DATE: January 29, 2020 REMANDED Entitlement to a rating in excess of 10 percent for left knee arthritis status post gunshot wound surgery (left knee disability) is remanded. Entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1973 to January 1977. The case was previously before the Board in August 2018 and December 2018, when it was remanded for further development. 1. Left Knee Disability The Board regrets the additional delay, but finds that another remand is necessary before the claims on appeal are adjudicated based on Stegall v. West. 11 Vet. App. 268 (1998) (holding that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). In August 2018, the Board remanded these issues for a VA examination. See BVA remand, August 31, 2018. The Board noted that in Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that 38 C.F.R. § 4.59 required VA examinations to include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if appropriate, with range of motion measurements of an opposite undamaged joint. The Board stated that it has reviewed the Veteran’s May 2013 and August 2014 VA examination reports and concluded that these examinations did not meet the Correia requirements, which would allow the Board to adequately assess the Veteran’s service-connected left knee disability. The examination contained range of motion testing of the left knee for what was presumably active motion, but not for passive motion, weight-bearing, or nonweight-bearing. Additionally, the Board found, that in January 2017, the Veteran noted that the May 2013 VA examiner stated that pain would significantly limit functional ability during flare-ups or after repetitive-use by decreasing range of motion of the left knee by 25 percent. However, the examiner did not further discuss or state whether that decrease in motion would be found in flexion or extension. The Board noted that the last VA examination provided was in August 2014. As such, the Board found a remand necessary to afford the Veteran a contemporaneous examination to determine the current severity of his left knee disability. See Allday v. Brown, 7 Vet. App. 517, 526 (1995) (indicating that, where the record does not adequately reveal the current state of the claimant’s disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). The AOJ scheduled a VA examination in October 2018. Unfortunately, ROM testing results in passive, weight-bearing, and nonweight-bearing were not provided. Rather, the examiner only provided ROM test results in, what is assumed to be, active motion, and noted that the Veteran had pain with weight-bearing and no pain on passive ROM testing and with nonweight-bearing. As such, the Board stated that a remand was required in order to comply with the Board’s remand instructions. See VA examination, October 17, 2018. In its December 2018 remand, the Board instructed the Agency of Original Jurisdiction (AOJ) to 1) provide a VA examination for the left knee disorder, and 2) readjudicate the claims on appeal. Specifically, the VA examiner was to 1) indicate all current symptoms associated with the Veteran’s left knee arthritis; 2) provide range of motion (ROM) testing results in active motion, passive motion, weight-bearing, and nonweight-bearing; 3) discuss the extent of any painful motion; and 4) discuss ay functional impairment resulting from the left knee arthritis. See BVA remand, December 26, 2018. In a May 2019 letter, VA informed the Veteran that he was going to be scheduled for a VA examination. See VA letter, May 10, 2019. Unfortunately, the AOJ never scheduled the Veteran for a new VA examination. The AOJ did not substantially complete the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Therefore, a VA examiner should issue an opinion considering the current severity of the Veteran’s service-connected left knee disability. In addition, any outstanding VA and private treatment records should be obtained. 2. TDIU As for the TDIU claim, the Board finds that the issue of TDIU is inextricably intertwined with the increased rating claim on appeal, and the Board will defer adjudication of the TDIU claim until the development directed on that claim has been completed. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain the Veteran’s outstanding VA treatment records. Associate them with the claims file. Document all efforts to obtain those documents in the claims file. VA must exhaust all efforts to attempt to obtain said records. 2. Contact the Veteran and request that she either provide any outstanding relevant private treatment records, or complete a release for any private providers. If any release is returned, attempt to obtain the identified records. If any records requested are not ultimately obtained, notify the Veteran pursuant to 38 C.F.R. § 3.159 (e) (2018). 3. Schedule the Veteran for an appropriate VA examination to evaluate the current severity of his service-connected left knee disability. The entire claims file must be reviewed, and the examiner must note that review in the examination report. The examiner’s report should reflect consideration of the Veteran’s documented medical history and assertions. All necessary tests and studies should be accomplished, and all clinical findings reported in detail. The examiner should respond to the following: (a.) Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), the examination must record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. If a joint cannot be tested on “weight-bearing,” then the examiner must specifically indicate why that testing cannot be done. (b.) Pursuant to Sharp v. Shulkin, the examiner is instructed to inquire whether there are periods of flare-ups. If the answer is “yes,” the examiner should state their severity, frequency, and duration. The examiner must also name the precipitating and alleviating factors. The examiner must also estimate, “per [the] veteran,” to what extent, if any, they affect functional impairment. (c.) Please obtain a detailed clinical history from the Veteran and provide a thorough account and analysis of the manner in which the Veteran’s left knee disability affects him in his everyday life, particularly the impact that it has on the Veteran’s ability to secure and follow a substantially gainful occupation. 4. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lech, 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.