Citation Nr: 1301960 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 07-25 155 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an increased rating for service-connected status post right medial meniscectomy (also referred to as right knee disorder), currently evaluated as 10 percent disabling. 2. Entitlement to a rating in excess of 30 percent for impairment of the right knee, with severe recurrent subluxation or lateral instability. 3. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU rating). REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran had active service from October 1983 to October 1985. This matter comes before the Board of Veterans' Appeals (Board) from September 2006 and November 2006 rating decisions of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which granted a temporary total rating, effective March 14, 2006, and denied a rating in excess of 10 percent, effective from May 1, 2006, for the Veteran's status post right medial meniscectomy. In May 2008, the Veteran testified at a Travel Board hearing, conducted at the RO, before the undersigned Veterans Law Judge. In September 2008, the Board remanded the Veteran's increased rating claim for further procedural and evidentiary development. Specifically, the Board requested that the RO: (1) provide the Veteran with appropriate notice regarding the type of evidence necessary to substantiate an increased rating claim; and (2) schedule the Veteran for a VA examination to determine the nature and extent of his service-connected right knee disability. As the requested development was completed, the Board concludes that there has been substantial compliance with the Board's September 2008 remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). In August 2011, the Board issued a decision which denied a rating in excess of 10 percent for the service-connected status post right medial meniscectomy; granted a separate 30 percent rating for impairment of the right knee with severe recurrent subluxation or lateral instability; and remanded the claim for a TDIU rating for further development. The Veteran appealed the Board's August 2011 denial (of a rating in excess of 10 percent for status post right medial meniscectomy) to the United States Court of Appeals for Veterans Claims (Court). In a Joint Motion for Partial Remand, filed in May 2012, the parties requested that the Board's August 2011 decision be vacated to the extent that it denied a rating in excess of 10 percent for status post right medial meniscectomy, and to the extent that it denied a separate rating greater than 30 percent for impairment of the knee with severe recurrent subluxation or lateral instability of the right knee. By Order dated in May 2012, the Court granted the parties joint motion for partial remand, and remanded the matter to the Board. The Board also notes that, in a letter dated in August 2012, the Veteran's attorney requested that Board remand the Veteran's claims of entitlement to a rating in excess of 10 percent for status post right medial meniscectomy, and entitlement to a separate rating greater than 30 percent for impairment of the right knee with severe recurrent subluxation or lateral instability. The Board notes that, by a rating decision dated in August 2012 (of which the Veteran was notified of by letter dated in October 2012), the RO granted service connection and a 30 percent rating for subluxation of the right knee. As the separate 30 percent disability rating assigned for subluxation of the right knee does not represent the maximum rating available for a right knee disability, and as the separate disability rating for arises from and is an element of the Veteran's appeal for an increased rating for his status post right medial meniscectomy, that issue has remained in appellate status and the Board has jurisdiction of this issue. AB v. Brown, 6 Vet. App. 35 (1993). The Board notes that, in the now partially-vacated Board decision dated in August 2011, the claim for entitlement to a TDIU rating was remanded for further development. A review of the claims folder and the Veteran's Virtual VA efolder does not appear to show any action has been taken on his TDIU claim. As the issue of entitlement to a TDIU rating has been reasonably raised by the record and is considered part and parcel of the Veteran's claim seeking an increased rating for his right knee condition, and is also inextricably intertwined with the claims for increased ratings currently on appeal, the claim for a TDIU rating must be remanded. See Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Harris v. Derwinski, 1 Vet. App. 180 (1991). In a letter dated in May 2012, the Veteran claimed that he was having buckling in his right knee, which caused him to suddenly fall down, and that he had a "bad back" from the sudden buckling and twisting, and trying to catch himself. He also claimed that the "Butler VA has treated [his] back as service-connected." Thus, a claim for service connection for a back disability has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Thus, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND I. Increased Rating Claims In a letter dated in May 2012, the Veteran indicated that "last December" he was seen at "Butler Veteran's Hospital," and claimed that his doctor was concerned about bone spurs in his right knee and the sharp pains he was having. The Veteran further claimed that his right knee was x-rayed and that the doctor arranged for him to see an orthopedic surgeon in Pittsburgh about having a knee replacement. The Veteran reported he was seen by the surgeon in February, and was told he had an aggressive form of arthritis in his knee, but was advised he was too young for a knee replacement. He then underwent treatment with "Supartz" shots, and claimed that two months later the sharp knee pains were still there, but not as often. He also reported he was having knee buckling, which caused him to fall down. Also, in a letter dated in August 2012, the Veteran's attorney indicated that, since the Board's August 2011 decision, the Veteran has continued to seek regular treatment at the Butler VAMC concerning his right knee problems. Based on these documents submitted by the Veteran and his representative, it appears that there at least outstanding VA treatment records, and potentially private treatment records, regarding the Veteran's right knee. With regard to the Veteran's reported right knee treatment at the Butler VA medical facility, the Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). As these VA treatment records could be relevant to the Veteran's claim and are considered in the possession of VA adjudicators, on remand, complete and current VA treatment records should be obtained. 38 U.S.C.A. § 5103A(b),(c). In addition, it appears that the Veteran's right knee disability may have worsened since the Board rendered its decision in 2011. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). Where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). In light of the Veteran's letter submitted in May 2012, suggesting an increase in his right knee disability, and the passage of time since the last VA examination in 2008 assessing the severity of his right knee disability, on remand, a VA examination should be obtained to assess the current nature and severity of the Veteran's right knee disability. II. TDIU Claim In March 2009, the Veteran contended that his service-connected knee disabilities preclude employment. He asserts that he has not been able to maintain steady work since leaving his job as a mailman due to these disorders. Further, in a letter dated in May 2012, the Veteran contended he was still unemployed. The Court has 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 is rather part of the initial adjudication of a claim or as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). During the December 2008 VA examination, the Veteran reported that he left his job at the post office in June 2008 because he could no longer perform his occupational duties due to his right knee disability. The examiner noted that, while the Veteran was able to perform his activities of daily living independently, he experienced pain while climbing stairs as well as during any type of activity which involved walking. Previous medical records reflect that the Veteran worked as a mail man and that his job required a great deal of standing and walking. In a statement dated in November 2008, the Veteran indicated that he was working as a maintenance man. However, in a subsequent letter submitted by the Veteran in March 2009, he indicated that he was currently unemployed due to his service-connected right knee condition. A June 2009 letter from the Veteran's private physician, Dr. W., reflects that the Veteran currently can not engage or participate in any employment which requires prolonged standing, walking, or climbing, and that he cannot do anything more than occasionally kneel or squat. The Board construes the Veteran's statements as contentions that his service-connected right knee disabilities have resulted in his inability to work, and finds that a claim of entitlement to a TDIU is reasonably raised by the record. However, the RO has not expressly adjudicated the issue of entitlement to a TDIU rating, nor has the Veteran received appropriate notice regarding the TDIU rating claim. He would therefore be prejudiced if the Board were to decide this claim without proper notice and prior adjudication by the RO. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Moreover, since a favorable decision with regard to the issues remanded above may have an impact on the Veteran's TDIU rating claim, such issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The Board therefore will defer appellate consideration of the claim of entitlement to a TDIU rating, pending the resolution of the Veteran's increased ratings claims. Accordingly, the claim for entitlement to TDIU must be remanded to the RO for adjudication prior to the rendering of a decision by the Board on this claim. Accordingly, the case is REMANDED for the following action: 1. Issue to the Veteran a VCAA notification letter pertaining to the issue of entitlement to a TDIU rating. 2. With any assistance needed from the Veteran, obtain any current and pertinent treatment records, related to treatment for his right knee disability, dated from 2008 to the present. This should specifically include pertinent treatment records from the Butler VA medical facility, and from the orthopedic surgeon that the Veteran reportedly saw in February 2012. Negative replies should be requested. 3. Thereafter, schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected status post right medial meniscectomy and his service-connected subluxation of the right knee-as well as the occupational impairment caused by these service-connected disabilities. The claims folder should be reviewed by the examiner in conjunction with the examination. A notation to the effect that this review has taken place should be made in the evaluation report. All indicated tests and studies should be performed, including radiographic tests and range of motion measurements (as well as the notation of the specific point at which, if any, motion is painful). All symptoms and manifestations should be enumerated, to specifically include any limitation of motion or instability of the service-connected right knee disability. The examiner should also opine as to whether the Veteran's right knee pain significantly limits functional ability during flare-ups or with extended use and as to whether the affected joint exhibits weakened movement, excess fatigability, or incoordination which could be attributed to the service-connected disability. In addition, the examiner should opine as to the impact of the Veteran's service-connected right knee disabilities on his ability to obtain and maintain substantially gainful employment. Complete rationale should be provided for all opinions expressed. If any requested opinions cannot be made without resort to mere speculation, the examiner should provide an explanation of why this is so. 4. After the above is completed, as well as any other development deemed necessary, adjudicate the claims on appeal. If any benefit sought on appeal is not granted, the Veteran and his attorney should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).