Citation Nr: 1108156 Decision Date: 03/01/11 Archive Date: 03/09/11 DOCKET NO. 04-24 094 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an increased evaluation in excess of 10 percent for residuals of left knee injury manifested by symptoms analogous to symptomatic removal of semilunar cartilage prior to and from February 19, 2005. 2. Entitlement to a separate evaluation in excess of 30 percent for residuals of left knee injury manifested by degenerative joint disease of the left knee with limitation of extension effective from February 19, 2005. 3. Entitlement to a total rating based on unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christine C. Kung, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1978 to September 1990. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from an April 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In a July 2005 rating decision, the RO granted an increased 20 percent evaluation for lumbar facet arthropathy effective February 15, 2005. The Board remanded the case to the RO for further development in May 2007. In a February 2009 decision, the Board (1) denied a rating in excess of 10 percent for residuals of a left knee injury manifested by symptoms analogous to symptomatic removal of semilunar cartilage; (2) granted a separate 30 percent evaluation for residuals of a left knee injury manifested by degenerative joint disease of the left knee with limitation of extension; and (3) dismissed an appeal for an increased evaluation in excess of 20 percent for lumbar facet arthropathy. In an August 2010 decision, the Board vacated the February 2009 decision in part, and remanded the issues of (1) entitlement to an increased evaluation in excess of 10 percent for residuals of a left knee injury manifested by symptoms analogous to symptomatic removal of semilunar cartilage prior to and from February 19, 2005, and (2) entitlement to a separate rating in excess of 30 percent evaluation for residuals of a left knee injury manifested by degenerative joint disease of the left knee with limitation of extension effective from February 19, 2005 for further development. The case is once again before the Board. Unfortunately, the Board finds that an additional remand is necessary prior to review of the Veteran's claim. The Board notes further that during the course of this appeal, the Veteran submitted evidence addressing the effect of his service-connected disabilities on his ability to secure or follow substantially gainful employment. In this regard, the Board notes that in Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a request for TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim, or, as part of a claim for increased compensation. Accordingly, the Board has jurisdiction of the issue of entitlement to a TDIU and that issue has been added to the present appeal. See also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (a separate, formal claim is not required in cases where an informal claim for TDIU has been reasonably raised); see also VAOPGCPREC 12-2001 (July 6, 2001) (further expansion on the concept of when an informal claim for TDIU has been submitted). 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 Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(I) (2010). Where a claimant asserts that the disability in question has increased in severity since the most recent rating examination, an additional examination is appropriate. See VAOPGCPREC 11-95 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1995); Green v. Derwinski, 1 Vet. App. 121 (1991). In a February 2011 statement from the Veteran's representative indicated that the Veteran's left knee disability had worsened since his last VA examination in February 2005 and requested a remand for a new VA examination to ascertain the Veteran's current level of disability. In light of the foregoing, the Board finds that a remand for additional VA examinations is necessary to address the current severity of the Veteran's claimed left knee disability. It appears, from the record, that the Veteran continues to receive treatment at the VA Medical Center in Columbia, South Carolina. The RO/AMC should obtain updated VA medical records and should associate them with the claims file. See 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992); VAOPGCPREC 12-95, 60 Fed. Reg. 43186 (1995) ("...an [agency of original jurisdiction's] failure to consider records which were in VA's possession at the time of the decision, although not actually in the record before the AOJ, may constitute clear and unmistakable error.") The record indicates that the Veteran is no longer working due to disability. The Board finds that further development is warranted to ascertain whether the Veteran's symptoms attributable to his service-connected disabilities render the Veteran unable to obtain and maintain gainful employment. The Court has held that a TDIU claim may not be denied without producing evidence, as distinguished from mere conjecture, that a veteran's disability does not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). In Friscia, the Court specifically stated that VA has a duty to supplement the record by obtaining an examination which includes an opinion on what effect the appellant's service-connected disability has on the ability to work. Friscia, at 297, citing 38 U.S.C.A. § 5107(a) (West 2002); 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.16(a) (2009); Beaty v. Brown, 6 Vet. App. 532, 537 (1994) and Obert v. Brown, 5 Vet. App. 30, 33 (1993). In light of the foregoing, the Board finds that the Veteran requires a current VA examination to ascertain whether unemployability due to his service-connected disabilities is demonstrated. The Board also notes that the Veteran has submitted additional medical evidence since the issuance of an October 2010 supplemental statement of the case. The RO/AMC should review the case again based on all additional evidence received and, thereafter, should furnish the Veteran and his representative with a Supplemental Statement of the Case. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain any updated VA treatment records and should associate them with the claims file. If the search for such records has negative results, the RO/AMC should notify the Veteran and place a statement to that effect in the Veteran's claims file. 2. The RO/AMC should refer the case for a VA orthopedic examination to determine the current severity of his service-connected left knee disability. The claims folder must be made available to the examiner for review, and the examination report should reflect that such review was completed. All indicated tests should be performed and the findings reported in detail. 3. The Veteran should be scheduled for a general medical examination to determine the current effect of his service-connected disabilities (genital herpes, residuals of a left knee injury, major depressive disorder, lumbar facet arthropathy, kidney stones, and hemorrhoids) on employability. The claims folder should be made available to the examiner. The examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran is unable to secure or maintain substantially gainful employment solely as a result of the combined effect of his service-connected disabilities. The examination report must include a complete rationale for all opinions and conclusions reached. 4. After all development has been completed, the RO/AMC should readjudicate the claim for higher ratings for the residuals of a left knee injury and adjudicate the issue of entitlement to a TDIU based on a review of all of the pertinent evidence of record to include the additional evidence such as additional VA and private medical records and statements submitted by the Veteran. If the benefits sought are not granted, the RO/AMC should furnish the Veteran and his representative with a Supplemental Statement of the Case, and should give the Veteran a reasonable opportunity to respond before returning the record to the Board for further review. 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 Supp. 2010). _________________________________________________ S. L. Kennedy 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) (2010).