Citation Nr: 1301128 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 09-09 465 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to a disability rating greater than 10 percent for a right knee disability. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from April 1980 to February 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which denied the Veteran's claim for a disability rating greater than 10 percent for a right knee disability (which was characterized as right knee medial and patellofemoral osteoarthritis, status-post medial meniscectomy for injury and torn medial meniscus). A videoconference Board hearing was held at the RO in August 2012 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. The Board notes that, in Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim cannot be considered separate and apart from an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Instead, the Court held that a TDIU claim is an attempt to obtain an appropriate rating for a service-connected disability. The Court also found in Rice that, when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. The record in this case indicates that the Veteran has not asserted that he is unemployable by reason of a service-connected disability. He specifically testified before the Board in August 2012 that he was unemployable due to a non-service-connected spinal cord injury. See Board hearing transcript dated August 24, 2012, at pp. 7. Thus, the Board finds that Rice is inapplicable. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND The Veteran contends that his service-connected right knee disability is more disabling than currently evaluated. The Board finds that a remand is necessary before this claim can be adjudicated on the merits. The Veteran testified at his August 2012 Board hearing that his service-connected right knee disability was manifested by increased knee popping, instability, and constant pain. See Board hearing transcript dated August 24, 2012, at pp. 3-5. He also testified that his right knee caused his right leg to drag and he had to use a walker to get around his bathroom at home. Id., at pp. 6. He finally testified that his service-connected right knee disability had worsened since his most recent VA examination in June 2010. Id., at pp. 7-8. The Board notes that VA's duty to assist under the VCAA includes obtaining an examination or medical opinion when necessary. The Court has held that, when a Veteran alleges that his service-connected disability has worsened since he was examined previously, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Given the Veteran's contentions, and given the length of time which has elapsed since his most recent VA examination in June 2010, the Board finds that, on remand, he should be scheduled for updated VA examination to determine the current nature and severity of his service-connected right knee disability. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. The Board observes in this regard that, if a Veteran has separate and distinct manifestations relating to the same injury, he should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). The Board also observes that, where a Veteran has a limitation of flexion and a limitation of extension, the limitations must be rated separately to adequately compensate for functional loss which comports with the principle underlying Esteban. See VAOPGCPREC 9-2004. The evaluation, however, of the same manifestation under different diagnostic codes is to be avoided. 38 C.F.R. § 4.14 (2012). VA's General Counsel has held that limitation of motion and instability of the knee involve different symptomatology and separate ratings specifically are allowed under the Rating Schedule with x-ray evidence of arthritis. See VAOPGCPREC 23-97 and VAOPGCPREC 9-98. The RO/AMC also should attempt to obtain the Veteran's up-to-date VA and private treatment records. A review of the claims file shows that the most recent VA outpatient treatment records are dated only through December 2010. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and/or his service representative and ask him to identify all VA and non-VA clinicians who have treated him for his service-connected right knee disability in recent years. Obtain all VA treatment records which have not been obtained already. Once signed releases are received from the Veteran, obtain all private treatment records which have not been obtained already. A copy of any records obtained, to include a negative reply, should be included in the claims file. 2. Schedule the Veteran for appropriate in-person VA examination to determine the current nature and severity of his service-connected right knee disability. The claims file and a copy of this remand must be made available to the examiner in conjunction with the examination. All appropriate tests and studies should be accomplished. The Veteran should be asked to provide a complete medical history of the disability. Based on a review of the Veteran's claims file and the results of his physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to state whether the service-connected right knee disability is manifested by right leg flexion limited to 30 degrees or less or right leg flexion limited to 15 degrees or less. The examiner also is asked to state whether the Veteran's service-connected right knee disability is manifested by dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint or moderate or severe recurrent subluxation or lateral instability of the knee. The examiner further is asked to state whether ankylosis or tibia and fibula impairment is present in the Veteran's right knee. If ankylosis is present, then the examiner is asked to state whether it is in a favorable angle in full extension or in slight flexion between zero and 10 degrees, in flexion between 10 and 20 degrees, in flexion between 20 and 45 degrees, or extremely unfavorable in flexion at an angle of 45 degrees or more. If tibia and fibula impairment is present, then the examiner is asked to state whether it is manifested by malunion with moderate knee disability, malunion with marked knee disability, or non-union with loose motion requiring a brace. A complete rationale must be provided for any opinions expressed. 3. The Veteran should be given adequate notice of the requested in-person examination which includes advising him of the consequences of his failure to report to the examination. If he fails to report to the examination, then this fact should be noted in the claims file and a copy of the scheduling of examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims file. 4. Review all evidence received since the last prior adjudication and readjudicate the Veteran's claim. If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran and his service representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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. 2012). _________________________________________________ WAYNE M. BRAEUER 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) (2012).