Citation Nr: 0809737 Decision Date: 03/24/08 Archive Date: 04/09/08 DOCKET NO. 07-16 626 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for total left knee replacement, to include restoration of a 60 percent rating. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his son. ATTORNEY FOR THE BOARD T. L. Reynolds, Counsel INTRODUCTION The veteran served on active duty from April 1943 to January 1944. This case comes to the Board of Veterans' Appeals (Board) on appeal from decisions of the St. Petersburg, Regional Office (RO) of the Department of Veterans Affairs (VA). The veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in February 2008. A transcript of that hearing is associated with the claims file. A motion to advance this case on the docket was granted by the Board in February 2008. See 38 U.S.C.A. § 7107(a) (West 2002); 38 C.F.R. § 20.900(c) (2007). REMAND In the veteran's VA Form 21-527 Income-Net Worth and Employment Statement, submitted in March 2007, he indicated that he was currently in receipt of monthly Social Security payments. The RO or AMC should inquire as to whether the veteran is currently in receipt of Social Security Disability (SSD) benefits and if so, for what disability or disabilities. If the veteran is in receipt of SSD benefits due to his left knee and/or low back disability, the RO should attempt to obtain a copy of the Social Security Administration (SSA) determination for the veteran as well as the records upon which the determination was based. The record reflects that the veteran was most recently afforded a VA orthopedic examination to determine the degree of severity of his total left knee replacement in July 2006. During the veteran's February 2008 hearing, he alleged that his left knee disability had increased in severity since the July 2006 VA examination. The recent medical evidence of record, moreover, documents numerous complaints of gait disturbance and frequent falls which led to the issuance of a standard wheelchair in February 2007 for purposes of mobility. Given the reported worsening of the veteran's symptoms since his VA examination, the Board finds that a new VA examination is necessary in order to decide the veteran's claim. See 38 U.S.C.A. § 5103A(d) (West 2002 and Supp. 2007); 38 C.F.R. § 3.159(c)(4) (2007). See also Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121 (1991). With respect to the veteran's claim of entitlement to a TDIU, the Board finds that this issue is inextricably intertwined with the issue being remanded. See Babchak v. Principi, 3 Vet. App. 466 (1992). Moreover, further development of the record, to include current VA examinations, is in order before the Board decides this claim. Finally, the Board notes that any records pertaining to treatment of the veteran's left knee disability and low back disability at the VA Medical Center (VAMC) in West Palm Beach, Florida since February 2007 should be obtained. In addition, while this case is in remand status, the RO or the Appeals Management Center (AMC) should provide the veteran with all required notice in accordance with Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. Jan.30, 2008). Accordingly, this case is REMANDED to the RO or the AMC, in Washington, D.C., for the following actions: 1. The RO or the AMC should provide the veteran and his representative the notice required under Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet.App. Jan. 30, 2008). It should specifically request him to indicate whether he has been awarded disability benefits by the SSA and if so, whether the award was based in whole or in part upon service- connected disability. 2. The RO or the AMC should undertake appropriate development to obtain any pertinent evidence identified but not provided by the veteran. If the veteran confirms that he has been awarded SSA disability benefits based on service- connected disability, it should request the SSA to provide a copy of any disability determination it has rendered for the veteran, as well as a copy of the record upon which the determination was based. Additionally, it should associate with the claims folder a copy of any pertinent VA outpatient records for the period since February 2007. If the RO or the AMC is unsuccessful in its efforts to obtain any evidence identified by the veteran, it should so inform the veteran and his representative and request them to submit the outstanding evidence. 3. Thereafter, the RO or the AMC should arrange for the veteran to be afforded a VA examination to determine the current degree of severity of his left knee and low back disabilities. The claims folder must be made available to and reviewed by the examiner. All indicated studies, including X-rays and range of motion studies in degrees, should be performed. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain and to the extent possible the examiner should assess the degree of severity of any pain. Regarding the veteran's left knee, the examiner should provide an opinion concerning the degree of severity (whether mild, moderate, or severe) of any lateral instability or subluxation of the left knee. The examiner should also determine whether ankylosis of the left knee is present and if so to what degree. The examiner should also determine whether the veteran's left knee replacement results in chronic residuals consisting of severe painful motion or weakness in the affected extremity. In terms of the veteran's left knee and low back disabilities, tests of joint motion against varying resistance should be performed. The extent of any incoordination, weakened movement and excess fatigability on use should also be described by the examiner. If feasible, the 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. The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare- ups (if the veteran describes flare- ups), and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. If feasible, 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. The examiner should also provide an opinion concerning the impact of the veteran's left knee and low back disabilities on his ability to work, to include whether they render him unemployable. The rationale for all opinions expressed should also be provided. 4. Thereafter, the RO or the AMC should review the claims folder and ensure that the requested development has been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 5. The RO or the AMC should also undertake any other indicated development. 6. Thereafter, the RO or the AMC should readjudicate the issues on appeal in light of all pertinent evidence and legal authority. If the benefits sought on appeal are not granted to the veteran's satisfaction, the RO or the AMC should issue to the veteran and his representative a supplemental statement of the case and afford them the appropriate opportunity for response before the claims file is returned to the Board for further appellate consideration. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until he is otherwise notified but he has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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 (CONTINUED ON NEXT PAGE) 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 Supp. 2007). _________________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).