Citation Nr: 1035136 Decision Date: 09/17/10 Archive Date: 09/21/10 DOCKET NO. 07-26 135 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for a left ankle disability. 2. Entitlement to an evaluation in excess of 20 percent for a right elbow disability. 3. Entitlement to an evaluation in excess of 20 percent for a left knee disability. 4. Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Ganz, Associate Counsel INTRODUCTION The Veteran had active military service from July 1978 to July 1982. This matter comes to the Board of Veterans' Appeals (Board) from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which continued the Veteran's 10 percent rating for strain of the lateral ligaments of the left ankle (left ankle disability), his 20 percent rating for epicondylitis, right elbow (dominate) (right elbow disability), and his 20 percent rating for residuals, Osgood-Schlatter's disease, left knee, with patellar tendinitis (left knee disability). The issues have been recharacterized to better comport to the evidence of record. The Veteran testified at a Board hearing at the RO before the undersigned Acting Veterans Law Judge in April 2010. At the April 2010 Board hearing the Veteran submitted additional medical evidence to the Board that had not been considered by the RO. However, a remand pursuant to 38 C.F.R. § 20.1304 is not necessary, as the Veteran specifically waived RO jurisdiction of the newly submitted evidence. 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 Veteran seeks evaluations in excess of 10 percent for a left ankle disability, in excess of 20 percent for a right elbow disability, and in excess of 20 percent for a left knee disability, and entitlement to a TDIU. Additionally, the Veteran testified that he receives medical care for his service connected disabilities at the VA Medical Centers (VAMCs) in Dallas and Temple, Texas. VA's duty to assist a claimant includes obtaining medical records and providing a medical examination or obtaining a medical opinion when necessary to decide the claim. 38 C.F.R. § 3.159(c)(4). The Veteran testified at his April 2010 hearing that his left ankle, right elbow, and left knee disabilities have worsened since his last VA examination in March 2008. Specifically, he experiences constant pain and swelling, and uses a cane due to his service-connected disabilities. He also stated that he has been put on bedrest for his left knee disability. Given the Veteran's testimony, and the fact that the last VA examination assessing the severity of his disabilities was over two and a half years ago, new VA medical examinations are needed prior to appellate review. See 38 C.F.R. § 3.159(c)(4). Additionally, although there are some treatment records from the VAMC in Dallas, Texas of record the Board finds that to ensure that VA has met its duty to assist the appellant in developing the evidence in support of his claim pursuant to 38 U.S.C.A. § 5103A, this case should be remanded so that any and all treatment records from the VAMC in Dallas and Temple, Texas can be obtained. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. During his April 2010 hearing the Veteran testified that it is easier for him to go to school than to work and that he lost his job as painter due to missing days in March 2009 because of his left knee disability. Thus, the Board finds that a claim for a TDIU is raised by the record as the evidence of record and it is currently before the Board on appeal. See id. Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. 38 C.F.R. §3.340. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran has not been provided with a medical examination regarding his employability. Thus, there is insufficient medical evidence for the Board to decide the Veteran's TDIU claim and a VA medical examination must be provided. See 38 C.F.R. § 3.159 (c). The appellant is hereby notified that it is his responsibility to report for the examination(s) and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination(s) without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158 and 3.655. Accordingly, the case is REMANDED for the following action: 1. Take all necessary actions to obtain any and all outstanding treatment records from the VAMCs in Dallas and Temple, Texas. Document all requests and negative responses. 2. Schedule the Veteran for a VA medical examination for the purpose of determining the current severity of his service-connected left ankle, right elbow, and left knee disabilities. All necessary and indicated testing should be performed. A complete rationale must be provided for all medical opinions. The claim file must be made available to and be reviewed by the examiner in conjunction with the examination and that review should be noted in the examination report. 3. Schedule the Veteran for a VA medical examination to determine his employability. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's service-connected disabilities, by themselves, render him unable to secure or follow a substantially gainful occupation. The examiner is advised that advancing age, any impairment caused by conditions that are not service connected, and prior unemployability status must be disregarded when determining whether a Veteran currently is unemployable. A complete rationale must be provided for all medical opinions. The claim folder must be made available to the examiner for review in conjunction with the examination. 4. Thereafter, if necessary, any additional development deemed appropriate should be accomplished. The claims should then be readjudicated. If any of the claims remain denied, the RO should issue a supplemental statement of the case (SSOC) containing notice of all relevant actions taken on the claims, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal, and allow an appropriate period of time for response. The appellant has the right to submit additional evidence and argument on the 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 Supp. 2009). _________________________________________________ SARAH B. RICHMOND Acting 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).