Citation Nr: 1760258
Decision Date: 12/27/17 Archive Date: 01/02/18
DOCKET NO. 14-24 170A ) DATE
On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
1. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD), to include entitlement on an extraschedular basis.
2. Entitlement to a rating in excess of 20 percent for a left knee disability.
3. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) due to service connected disabilities.
Appellant represented by: Robert Chisholm, Attorney
ATTORNEY FOR THE BOARD
S. Mountford, Associate Counsel
The Veteran had active military service from January 1950 to January 1953 in the Coast Guard, from December 1953 to December 1956 in the Marine Corps, and from July 1957 to August 1971 in the Air Force.
This matter comes before the Board of Veterans’ Appeals (Board) from the July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.
This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017).
The Veteran’s most recent VA examination to evaluate his PTSD was conducted in May 2012. Since then, a December 2016 vocational assessment indicates that the Veteran’s PTSD has worsened. Additionally, in July 2016, the representative requested that the VA obtain the Veteran’s treatment records from the Miami VA Health Care System. In light of the possibility that not all of the Veteran’s treatment records are associated with the record as well as the fact that the Veteran’s most recent PTSD examination was over five years ago, the Board finds that a new VA examination is necessary to assess the severity of his PTSD and a remand is thereby warranted.
The Veteran’s left knee disability is currently rated as 20 percent disabling under Diagnostic Code 5260, which considers limitation of motion.
A VA examination occurred in June 2012. The report for that examination includes range of motion measurements for the Veteran’s left knee, to include descriptions of the effect of pain on the Veteran’s functioning and whether the Veteran has additional functional loss following repetitive use of his knees.
However, the examination does not specify whether the range of motion measurements were taken on active motion, passive motion, weight bearing, and/or non-weight bearing. In addition, the examiner did not indicate that he was unable to perform range of motion testing on active, passive, weight bearing, or non-weight bearing or that such testing was not necessary. Therefore, the examination report does not make clear the extent to which pain affects the Veteran’s passive, active, weight bearing, and non-weight bearing motion. In that regard, the Board observes that a new precedential opinion that directly impacts this case was issued by the Court of Appeals for Veterans Claims (Court).
In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 (2016) creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The final sentence of that section provides, in relevant part, that “[t]he joints involved should be tested for pain on both active and passive motion, in weight bearing and non-weight bearing . . . .” The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59. Here, the March 2013 VA examination report does not comply with Correia because it does not include range of motion testing on active, passive, weight bearing, and non-weight bearing or a statement to the effect that such testing was not possible or unnecessary in this case, such that the effects of pain on the Veteran’s functioning may adequately be assessed under the provisions of 38 C.F.R. § 4.59. Accordingly, the Veteran must be afforded a new VA knee examination that complies with Correia and includes all necessary information in view of 38 C.F.R. § 4.59.
Additionally, the Court has held that a claim for a total rating based on unemployability due to service-connected disabilities (TDIU), either expressly raised by a veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran has asserted that he is totally unemployable as the result of his service connected disabilities. Accordingly, the Board concludes that a claim for TDIU has been raised.
As the resolution of the claim for an increase rating for the Veteran’s PTSD might be determinative of the TDIU claim, the issues are inextricably intertwined, and the TDIU issue must also be remanded. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).
Since the claims file is being remanded, it should be updated to include any outstanding VA treatment records. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992).
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. Obtain any outstanding VA treatment records and associate those documents with the Veteran’s claims file. These records should include any treatment records from the Miami VA Health Care System.
2. Once the above development has been completed, schedule the Veteran for a PTSD VA examination to assess the severity of his service connected PTSD. The examiner must review the electronic claims file to include this remand. All indicated tests should be performed, and all findings reported in detail. The examiner should also indicate the impairment that results from the Veteran’s service connected PTSD in terms of occupational functioning and daily activities.
A complete rationale for all opinions must be provided. If the examiner is unable to provide an opinion without resorting to speculation, he or she must explain why this is so.
3. Schedule the Veteran for a VA knee examination to determine the current nature and severity of his service connected left knee disability. The examination should include all studies, tests, and evaluations deemed necessary by the examiner. The examiner should report all manifestations related to the service connected disability. The record and a copy of this Remand must be made available to and reviewed by the examiner. The examiner must address the following:
a) Pursuant to Correia, the examination should record the results of range of motion testing for pain on both active and passive motion and in weight bearing and non-weight bearing for BOTH knees. 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.
In recording the ranges of motion for the Veteran’s knees, the examiner should note whether, upon repetitive motion, there is any pain, weakened movement, excess fatigability, or incoordination of movement, and whether there is likely to be additional functional loss due to pain on use, weakened movement, excess fatigability, or incoordination over time. The examiner should also indicate whether the Veteran experiences additional functional loss during flare-ups of the service connected left knee disability. If there is no pain, no limitation of motion, and/or no limitation of function, such facts must be noted in the report.
b) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If this is not feasible to determine without resort to speculation, the examiner must provide an explanation for why this is so.
The examiner must note that the record was reviewed. The examiner must provide a complete rationale for any opinion expressed.
4. The RO must notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2016). In the event that the Veteran does not report for any scheduled examination, documentation showing that he was properly notified of the examination must be associated with the evidence of record.
5. Following completion of the above, and a review of any additional evidence received, the RO should also undertake any other development it deems to be necessary, to include, if warranted, an addendum medical opinion which considers any newly received evidence.
6. Then, the RO should readjudicate the Veteran’s claim. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran should be provided a supplemental statement of the case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action.
By this remand, the Board intimates no opinion as to any final outcome warranted.
The appellant 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). 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.A. §§ 5109B, 7112 (West 2014).
Veterans Law Judge, Board of Veterans’ Appeals
Under 38 U.S.C.A. § 7252 (West 2014), 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).