Citation Nr: 1754151	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  14-00 255	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Honolulu, Hawaii


THE ISSUES

1.  Entitlement to a rating in excess of 10 percent for a right knee disability.

2.  Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

T. Matta, Associate Counsel



INTRODUCTION

The appellant is a Veteran who served on active duty from July 1967 to July 1971, from October 1971 to October 1976, and from October 1977 to December 1989.  These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision by the Honolulu, Hawaii Department of Veterans Affairs (VA) Regional Office (RO).  In June 2015, a Veterans Law Judge other than the undersigned remanded these matters for issuance of a statement of the case (SOC); the Veteran perfected his appeal in these matters in October 2015.  The case is now before the undersigned.

The June 2015 Board remand also remanded the matter of entitlement to an increased rating for service-connected neck disability for issuance an SOC.  As the Veteran did not perfect his appeal in this matter following the October 2015 SOC, this issue is not before the Board.

The June 2015 Board remand referred to the Agency of Original Jurisdiction (AOJ) the issue of entitlement to service connection for a back disability as secondary to service-connected bilateral knee disability.  As there is no indication that the AOJ has acted on the referral, the issue is again referred to the AOJ for appropriate action.   38 C.F.R. § 19.9(b) (2017).

The appeal is REMANDED to the AOJ.  VA will notify the Veteran if action on his part is required.


REMAND

Although the Board sincerely regrets the additional delay in deciding this appeal that inevitably will result from this additional remand, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration.

While this issue was before the RO, the U.S. Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  Correia v. McDonald, 28 Vet. App. 158 (2016).  Thus, the Court clarified the requirements that must be met with respect to orthopedic disability examinations prior to the Board finding that an examination report includes adequate evidence to adjudicate the claim.  Id.  In this case, a review of the claims file reveals that the prior VA knee examination does not fully comport with the requirements of Correia and therefore may be inadequate.  Thus, at present, none of the medical evidence of record may fully satisfy the requirements of Correia and 38 C.F.R. § 4.59.  Accordingly, a new VA knee examination is necessary.

The Veteran contends that he is unable to maintain substantially gainful employment due to his service-connected disabilities.  Because the issue of entitlement to a higher rating for his right knee disability is being remanded for additional development, the Board finds that the issue of entitlement to TDIU is inextricably intertwined with this claim.  Hence, consideration of whether the Veteran is entitled to TDIU must be deferred pending resolution of the claim being remanded.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together accordingly).

Accordingly, the case is REMANDED for the following:

1. The AOJ should ask the Veteran to identify all providers of evaluations or treatment he received for his right knee disability and to provide authorizations for VA to obtain records of any such private evaluations or treatment.  The AOJ should obtain for the record complete clinical records of the evaluations and treatment identified (i.e., any not already associated with the record).  If any private records identified are not received pursuant to the AOJ's request, the Veteran should be so notified and advised that ultimately it is his responsibility to ensure that private records are received.

2. The AOJ should specifically obtain for the record the complete clinical records of all VA evaluations and treatment the Veteran has received for his right knee disability (i.e., update to the present all records of VA evaluations and treatment for his right knee disability from all VAMCs).

3. The AOJ should then arrange for an orthopedic examination of the Veteran to assess the current severity of his service-connected right knee disability.  The examiner must review the entire record in conjunction with the examination.  Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail.  All indicated tests or studies should be completed.

Range of motion studies should include active AND passive motion and weight-bearing AND non-weight-bearing.  The examiner should note any further functional limitations due to pain, weakness, fatigue, incoordination, or any other such factors.

The examiner is further instructed to request that the Veteran provide information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares and offer flare opinions based on estimates derived from such information, including any lay statements of the Veteran.  The Board notes that the Veteran has previously stated that his knees buckle under the pressure of his bodyweight, that he is forced to lay in bed for a majority of the day, and that he is unable to walk for "about 2 days" during flare-ups.

A detailed explanation (rationale) is requested for all opinions provided.  (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation.  Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested).  

4.  After completion of the foregoing, the AOJ should obtain a VA medical opinion (with examination only if deemed necessary) by a vocational specialist if possible (if not possible, then by an appropriate medical provider). Based on review of the entire record, the opinion provider should offer an opinion regarding the effect the Veteran's service-connected disabilities have on his ability to secure and follow a substantially gainful occupation, considering his education and occupational experience, but not the effects of age and any nonservice-connected disabilities.  The provider should opine the extent to which the Veteran's service-connected disabilities preclude him from participating in substantially gainful employment consistent with his education and work experience.  The provider should identify (provide examples of) the types of employment that would be inconsistent with the service-connected disabilities (in light of the Veteran's education and work experience) and any types of employment that would remain feasible despite the service-connected disabilities. 

A detailed explanation (rationale) is requested for all opinions provided.  (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation.  Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.)  

5.  Following any additional development deemed necessary, the AOJ should then review the record and re-adjudicate the claims.  If any remain 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 remanded matters.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  As a remand, these matters must be handled expeditiously.  38 U.S.C. §§ 5109B, 7112 (2014).



_________________________________________________
A. C. MACKENZIE
Veterans Law Judge, Board of Veterans' Appeals

Only a decision of the Board of Veterans' Appeals can be appealed to the United States Court of Appeals for Veterans Claims.  38 U.S.C. § 7252 (West 2014).  This remand is a preliminary order and not an appealable decision on the merits of the claim(s).  38 C.F.R. § 20.1100(b) (2017).
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