Citation Nr: 1304664 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 10-28 424 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a back disability, secondary to service connected right and left knee disabilities. 2. Entitlement to an increased rating for chondromalacia, left knee, with degenerative joint disease, currently rated as 20 percent disabling. 3. Entitlement to an increased rating for status post anterior cruciate ligament reconstruction, right knee with degenerative joint disease, currently rated as 10 percent disabling. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant, spouse ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from August 1984 to June 1987, and from February 1988 to November 1999. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in December 2009, a statement of the case was issued in June 2010, and a substantive appeal was received in July 2010. The Veteran presented testimony at a Board hearing in August 2011. A transcript of the hearing is associated with the Veteran's claims folder. At his August 2011 Board Hearing, the Veteran testified that he is unemployed due to his service-connected disabilities, including those disabilities on appeal. The Court of Appeals for Veterans Claims held that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate 'claim' for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue whether a TDIU is warranted as a result of that disability. Id. As such, the Board has added the issue of entitlement to a TDIU rating. 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 At the August 2011 Board hearing, the Veteran's representative argued that the Veteran's knee disability is more severe than currently rated. Moreover, the Veteran described symptoms at his August 2011 hearing that reflect a worsening over those shown at the most recent VA examination report in May 2011. Specifically, at his hearing, the Veteran testified that his knees hurt almost all the time, while at the May 2011 examination he denied constant left knee pain. Instead, the examiner stated that the pain flares up unpredictably several times per week. The Veteran further denied awakening at night as a result of left knee pain. However, at his August 2011 Board hearing, both the Veteran and his wife stated that he wakes up several time per night to readjust himself due to pain. Additionally, in May 2011 the Veteran denied locking, giving way, and weakness in the right knee; and that he has only had give-way weakness in the left knee on one occasion (while walking in the snow). However, at the August 2011 hearing he testified that he experiences instability, and a feeling that he is going to fall several times per week. He also contended that the May 2011examiner never asked him whether there was crepitus, swelling, redness, tenderness to the touch, or giving out of the knee. Furthermore, the Board notes that the May 2011 VA examiner stated that the Veteran walked with a normal gait. However, the Veteran, his wife, and his representative all stated that the Veteran walks with a limp. Consequently, the Board finds that a new VA examination is warranted. Accordingly, the case is REMANDED for the following action: 1. The RO should make sure that the VA records are updated and in the claims folder. 2. The RO should schedule the Veteran for a VA in-person orthopedic examination for the purpose of determining the current severity of the Veteran's left and right knee disabilities. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Any special tests deemed medically advisable should be conducted. Range of motion testing should be conducted, and if possible, the examiner should report (in degrees) the point in range of motion testing where motion is limited by pain. If possible, the examiner should also offer an opinion as to the degree of additional functional loss (if any) due to weakness, fatigue, and incoordination, including during flare-ups. In addition, following a review of the relevant medical evidence in the claims file, to include the service treatment records and post-service treatment records; the medical history obtained from the Veteran; the clinical evaluation; and any tests that are deemed necessary, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that any back disability was caused, or aggravated by, his service connected knee disabilities. Finally, the examiner should state whether it is at least as likely as not that the Veteran's service-connected knee disabilities preclude substantially gainful employment. 3. After completion of the above, the AMC should review the expanded record and determine if the benefits sought can be granted. If the claims remain denied, then the AMC should furnish the Veteran and his representative with a supplemental statement of the case, and afford a reasonable opportunity for response 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. 2012). _________________________________________________ ERIC S. LEBOFF 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).