Citation Nr: 1209331 Decision Date: 03/13/12 Archive Date: 03/28/12 DOCKET NO. 09-40 244 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for right total knee replacement. 2. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and D.V. ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1975 to January 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2007 rating decision of the Baltimore, Maryland Regional Office (RO). In March 2011, the Veteran was afforded a hearing before the below-signed Veterans Law Judge sitting in Washington, D.C. A transcript of that hearing has been associated with the claims file. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Board has added the matter of entitlement to a TDIU to the Veteran's appeal. A TDIU is an element of all appeals of an increased rating. Rice v. Shinseki, 22 Vet.App. 447 (2009). As the Veteran testified in March 2011 that he had to relinquish his employment due to his right knee disability, the Board must consider whether he is entitled to TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); 38 C.F.R. § 3.155(a) (2011). The issue of entitlement to service connection for a right ankle disability as secondary to the right knee disability has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is REFERRED to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC, to ensure compliance with applicable law. VA will notify the Veteran if further action is required on his part. REMAND The claims file reflects that some evidence remains outstanding and a new examination is warranted to assess the current severity of the Veteran's right knee disability. The claims must be remanded for additional development in compliance with the duty to assist. The last VA treatment records associated with the claims file were generated on April 7, 2008. Those notes reveal that the Veteran was receiving ongoing VA treatment for his right knee disability. While this case is in remand status, the RO/AMC must gather any newly generated treatment records and associate them with the claims file. As the Veteran has testified that he is in receipt of disability benefits from the Social Security Administration (SSA) due to his right knee disability, the RO/AMC also must take appropriate steps to attempt to obtain the records on which any grant of benefits was based. Voerth v. West, 13 Vet. App. 117, 121 (1999); 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c)(2) (2011). Pursuant to 38 C.F.R. § 3.327(a) (2011), examinations will be requested whenever VA determines that there is a need to determine the exact nature, or severity, of a disability. See also 38 C.F.R. § 3.159 (2011). VA has the authority to schedule a compensation and pension examination when deemed necessary and the Veteran has an obligation to report for that examination. The Veteran was last afforded a VA examination for his service-connected left leg disability in September 2007. As more than four (4) years have passed since that examination and the Veteran has testified that his disability has worsened, another VA examination is warranted. 38 C.F.R. § 3.327(a). The appeal is therefore REMANDED to the RO/AMC for the following actions: 1. Ask the Veteran if he has received any private medical treatment for his right knee disability or if any employment records may contain evidence supportive of his claims. Provide him with the necessary authorizations for the release of any identified employment or private treatment records not currently on file. 2. Gather outstanding records of VA medical treatment generated AFTER April 7, 2008 and associate them with the claims file. 3. If any treatment records are unavailable, document the unavailability within the claims file and advise the Veteran so he can submit any copies in his possession. 4. Take appropriate steps to obtain from the SSA copies of the evidence relied on in any decisions regarding the Veteran's eligibility for disability benefits. If the records are unavailable, document the unavailability within the claims file and advise the Veteran so he can submit any copies of such documents in his possession. 5. After completing the above, schedule the Veteran for a VA examination at an appropriate location to determine the current severity of his service-connected right total knee replacement. The following considerations will govern the examination: a. The entire claims folder and a copy of this remand must be made available to the examiner in conjunction with the examination. The examination report must reflect review of pertinent material in the claims folder. b. After reviewing the claims file and conducting an interview with, and an examination of, the Veteran, the examiner must provide current findings as to the severity of the right knee disability, to include discussion of the Veteran's complaints of pain, daily locking, and weekly collapsing. c. The examiner must: i. Provide range of motion measurements and discuss whether or not there is instability; ii. Comment on the effects of the disability on the Veteran's employment and employability; iii. Complete an independent review of the claims file and discuss the results of the September 2007 and any subsequent changes in severity. d. In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of pertinent evidence of record. e. All clinical findings must be reported in detail and correlated to a specific diagnosis. The report prepared must be typed. 3. Readjudicate the Veteran's claims, to include consideration of the applicability of any additional pertinent disability codes and/or staged ratings and consideration of an included claim for a total rating based on Roberson, above. If the claims are not granted in full, the Veteran and his representative must be provided a supplemental statement of the case (SSOC). The SSOC must contain 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. An appropriate period of time must be allowed for response. Thereafter, if indicated, the case must be returned to the Board for appellate disposition. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is notified that it is his responsibility to report for any examinations and to cooperate in the development of the claim. 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 (2010). If the Veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any sent notice was returned as undeliverable. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The RO and the Veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the appellate courts. It has been held that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). 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. 2011). _________________________________________________ Vito A. Clementi 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) (2011).