Citation Nr: 1007266 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 06-31 096 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU rating). REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran had active service from February 1974 to January 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 RO rating decision that denied a claim for a TDIU rating. In a July 2008 decision, the Board denied the Veteran's claim. The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In September 2009, the parties (the Veteran and the VA Secretary) filed a joint motion which requested that the Board's decision be vacated and remanded. A September 2009 Court Order granted the motion. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board is remanding this matter pursuant to the September 2009 Court Order. The Veteran claims that his established service-connected disabilities prevent gainful employment, warranting a TDIU rating. He is currently service-connected for a right knee disability (rated 30 percent); a left knee disability (rated 30 percent); diabetes mellitus (rated 20 percent); and hypertension (rated 10 percent). The combined rating is 70 percent. The Veteran was last afforded a VA diabetes mellitus examination in May 2006. The diagnoses were diabetes mellitus, type II, without apparent complications, and hypertension, without apparent complications. A VA orthopedic examination, performed at the time of the May 2006 VA diabetes mellitus examination, noted that the Veteran had both knee joints replaced prior to his last examination a year earlier. The Veteran reported that since that time, he still had pain in both joints, especially when walking downstairs or ramps. He stated that he also would have some degree of swelling late in the day that was mostly in the legs and ankles and often accompanied by some tingling and partial numbness in the feet. The Veteran indicated that Celebrex helped relieve his pain and that Hydrochlorothiazide decreased his swelling and tingling. It was noted that the Veteran wore soft flexible knee sleeves when he walked and that he used a walker for any lengthy walking, but not around the house. The Veteran stated that he could walk about ten to fifteen minutes before he noticed pain of any significance. The examiner reported that the Veteran had very slight anterior laxity on the right side and that the left side was stable. The examiner indicated that there was no redness, swelling, or deformity, and that the Veteran's strength was normal. The examiner stated, as to range of motion, that both the right knee and the left knee demonstrated extension to 0 degrees and flexion to 90 degrees, with pain at the extremes of flexion only. It was noted that there was "No DeLuca". The examiner reported that the Veteran demonstrated normal posture and gait using his walker and soft knee braces. The impression was post bilateral knee replacements with lingering limited range of motion. In an addendum, the examiner commented that there was no pain on range of motion or flare-ups of the above joints except as stated above. The examiner also remarked that all of the above joints had no additional limitations by pain, fatigue, weakness, or lack of endurance following repetitive use. The Board observes that the VA examiner did not indicate whether the Veteran's service-connected disabilities rendered him unemployable. The Board notes that records from the Social Security Administration (SSA) indicate that the Veteran is receiving disability compensation. Additionally, several statements from private physicians have indicated that the Veteran was unemployable. For example, a February 2005 statement from J. D. Dalton, Jr., M.D., noted that he had been the Veteran's orthopedic surgeon since March 2000. Dr. Dalton reported that the Veteran was initially managed non-operatively for severe osteoarthritis in both knees. Dr. Dalton stated that in May 2001, the Veteran underwent arthroscopic debridement of his right knee which helped somewhat, but that he continued to have pain in each knee. It was noted that in January 2004, the Veteran underwent a right total knee replacement and that he underwent a left total knee replacement in July 2004. Dr. Dalton commented that while the Veteran had recovered nicely, he did not believe that the Veteran was physically capable of performing duties as a transportation operations specialist. Dr. Dalton further remarked that he believed that the Veteran was disabled in his current occupation as a transportation operations specialist. In a January 2006 statement, Dr. Dalton essentially restated the opinions expressed in his February 2005 statement. In a March 2007 statement, C. W. Wimberly, M.D., noted that he had been the Veteran's family doctor for ten years. Dr. Wimberly reported that the Veteran underwent total knee replacement for both knees in 2004. Dr. Wimberly indicated that it was his professional opinion that the Veteran could no longer be a productive member in the work force and that he believed that gainful employment could not be realized based on the issues discussed in his statement. In a November 2009 statement, Dr. Wimberly essentially repeated the opinions expressed in his March 2007 statement. In a November 2009 statement, Dr. Dalton indicated that he felt that the Veteran was physically incapable of safely functioning in his occupation as a transportation operations specialist. The Board observes that there is no indication that Dr. Dalton or Dr. Wimberly reviewed the Veteran's claims file in providing their opinions. Further, neither physician specifically addressed whether the Veteran could perform other employment, such as sedentary employment. The Board observes that the September 2009 joint motion (noted above in the INTRODUCTION) indicated that Board did not apply the correct legal standard in this matter as the law did not require a claimant to show that he was precluded from obtaining and retaining all forms of substantially gainful employment. The joint motion also reported that the evidence summarized by the Board appeared to uniformly indicate that the Veteran was unable to work due to his service-connected knee disabilities. The Board observes, however, as noted above, that the opinions from Dr. Dalton and Dr. Wimberly were not provided after a review of the Veteran's entire claims file. Additionally, neither Dr. Dalton nor Dr. Wimberly specifically addressed whether the Veteran could perform sedentary employment. Further, the Board notes that the Veteran essentially attributes his inability to work to his service-connected bilateral knee disabilities. The Board observes that the most recent May 2006 VA diabetes mellitus examination report specifically indicated that the Veteran's service-connected diabetes mellitus and hypertension were without apparent complications. The Board notes that while the May 2006 examination report indicated significant symptomatology as to the Veteran's service-connected right and left knee disabilities, it did not address whether Veteran's service- connected disabilities rendered him unemployable. Moreover, that May 2006 VA examination report noted that the Veteran reported that he could walk for ten to fifteen minutes before noticing pain of any significance. The Board observes that the Veteran has not been afforded a VA examination in over three years. He has also not been afforded a recent VA examination that specifically addresses whether his service-connected disorders render him unemployable. Therefore, in light of the Courts Order and the evidence of record, the Board finds that a current examination is necessary. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1995) (VA was required to afford a contemporaneous medical examination where examination report was approximately two years old); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Prior to the examination, any outstanding records of pertinent treatment should be obtained and added to the record. Accordingly, the case is REMANDED for the following: 1. Ask the Veteran to identify all medical providers who have treated him for his service-connected disabilities since June 2006. After receiving this information and any necessary releases, contact the named medical providers and obtain copies of the related medical records which are not already in the claims folder. Specifically, VA treatment records since June 2006 should be obtained. 2. Have the Veteran undergo the appropriate VA examination(s) to ascertain the current severity of his service-connected disabilities and to obtain a medical opinion as to whether the service-connected disabilities alone render him unemployable. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. The examiners should note that the Veteran's service-connected disabilities involve only his knees, diabetes mellitus, and hypertension. The examiner(s) should describe current impairment from each of the service- connected disabilities, and should specifically provide an opinion as to whether the Veteran's service-connected disabilities, without consideration of any of his nonservice-connected disabilities, render him unable to secure or follow a substantially gainful occupation. If the Veteran's service- connected disabilities do not cumulatively render him unemployable, the examiner should suggest the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disabilities, given his current skill set and educational background. 3. Thereafter, readjudicate the claim for entitlement to a TDIU rating. If any benefit sought on appeal remains denied, issue a supplemental statement of the case to the Veteran and his representative, and provide an opportunity to respond before the case is returned to the Board. The purposes of this remand are to ensure notice is complete, and to assist the appellant with the development of his claim. 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). No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. 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 Supp. 2007). _________________________________________________ DENNIS F. CHIAPPETTA 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) (2009).