Citation Nr: 1306169 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 10-30 255 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE 1. Entitlement to a rating in excess of 10 percent for degenerative joint disease and degenerative meniscal tear of the right knee. 2. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. Joyner, Counsel INTRODUCTION The Veteran served on active duty from September 1969 to August 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In June 2012 the Veteran testified at a videoconference hearing held before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is in the claims file. 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 The Veteran contends that his service-connected degenerative joint disease and degenerative meniscal tear of the right knee is more severe than is contemplated by the currently assigned 10 percent rating. Specifically, at his June 2012 Board hearing the Veteran indicated that his right knee symptoms have worsened in severity since his most recent VA examination was conducted in September 2011. VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran was entitled to a new examination after a two year period between the last VA examination and the Veteran's contention that his disability had increased in severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). As such, a remand for a new examination is warranted. Additionally, an October 2009 VA treatment record reflects that the Veteran's right knee degenerative joint disease is severe, and likely aggravated by his previous left knee problems and the resulting need to rely heavily on his right knee. The record reflects that the Veteran underwent a total left knee replacement; however, that disability is not service connected. As such, the VA examiner must attempt to differentiate the nature or extent of disability attributable to the service-connected right knee disability as opposed to any increased right knee symptomatology due to aggravation from the nonservice-connected left knee total knee replacement. However, the Board emphasizes that if it is not possible to distinguish the effects of the service-connected right knee disability alone from any aggravation of such due to the nonservice-connected left knee disorder, the reasonable doubt doctrine dictates that all right knee symptoms be attributed to the Veteran's service-connected right knee disability. See Mittleider v. West, 11 Vet. App. 181 (1998) (regulations require that when examiners are not able to distinguish the symptoms and/or degree of impairment due to a service-connected versus a nonservice-connected disorder, VA must consider all of the symptoms in the adjudication of the claim). Additionally, at the Board hearing the Veteran indicated that he was last seen at the Fayetteville, NC VA Medical Center in January 2012. The most recent VA treatment records contained in the claims file are from October 2009. Therefore, the Board finds that the Veteran's VA treatment records dating from October 2009 to the present should be obtained and associated with the claims file. 38 U.S.C.A. § 5103A(c) (West 2002). See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Also at the Board hearing the Veteran indicated that he receives private treatment from Dr. Nicholson at Moore Family Care. A review of the record reflects that the treatment records from Dr. Nicholson are not in the claims file. Therefore, efforts to obtain these records should be made on remand. Finally, in the Veteran's VA Form 9, he stated that he is unable to work full time. Although the February 2009 VA examination report notes that the Veteran was then employed full time by the local county in the department of animal control, the September 2011 VA examination report does not reflect whether the Veteran was then currently employed. It does reflect that the right knee disability does not affect the Veteran's usual occupation, but it does not reflect whether the Veteran was then currently employed. Moreover, the record reflects that the Veteran was awarded Social Security Administration (SSA) disability benefits. The SSA records indicate that the Veteran reported having most recently worked in March 2009. Thus, the Board finds that the issue of entitlement to TDIU has been raised by the record. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (holding that once a veteran submits evidence of medical disability and additionally submits evidence of unemployability, VA must consider a total rating for compensation based upon individual unemployability). A request for TDIU 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, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). If the Veteran or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability as a result of that disability is warranted. Id at 455. As the RO has not yet considered whether the Veteran is entitled to TDIU, the issue must be remanded to the RO for initial adjudication. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a) (2012). The Board notes that the Veteran currently does not meet the schedular criteria for a TDIU. However, TDIU can also be granted on an extraschedular basis. 38 C.F.R. § 4.16(b) (2012). Therefore, the RO should send a notice letter to the Veteran for his TDIU claim. This letter should notify the Veteran and his representative of any information or lay or medical evidence not previously provided that is necessary to substantiate the TDIU claim. The notice should also indicate what information or evidence should be provided by the Veteran and what information or evidence VA will attempt to obtain on the Veteran's behalf. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). Moreover, as the record does not contain a current, adequate medical opinion, based upon a thorough review of the record, regarding whether the Veteran's service-connected degenerative joint disease and degenerative meniscal tear of the right knee causes him to be unemployable, such an opinion must be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate release of information forms, the RO/AMC should procure any records of outstanding treatment that the Veteran may have received for his degenerative joint disease and degenerative meniscal tear of the right knee from Dr. Nicholson at Moore Family Care. All such available records should be associated with the claims file. All attempts to obtain these records must be documents in the claims file. 2. Obtain all VA treatment records from the Fayetteville VA Medical Center and any associated outpatient clinic dated from October 2009 to the present, and associate them with the claims file. All attempts to obtain those records must be documented in the claims file. 3. Provide the Veteran with a letter satisfying the duty to notify provisions with respect to his claim of entitlement to TDIU. 4. Schedule the Veteran for a VA joints examination to determine the current severity of his degenerative joint disease and degenerative meniscal tear of the right knee, and the impact the disability has on the Veteran's ability to work. The claims file and a copy of this Remand must be provided to the examiner and reviewed in conjunction with the examination. Any appropriate diagnostic testing, to include X-rays or magnetic resonant imaging tests (MRIs) should be conducted. All ranges of motion of the right knee should be tested, and the examiner should note if repeated range of motion testing results in additional limitation of motion, or in functional loss, as discussed in DeLuca v. Brown, 8 Vet. App. 202 (1995). If there is functional loss as a result of weakened movement, excess fatigability, or incoordination in the right knee, the examiner should express the degree of additional range of motion loss or favorable or unfavorable ankylosis due to any weakened movement, excess fatigability, or incoordination. Furthermore, an opinion must be given as to whether any pain associated with the right knee could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use or during flare-ups. Mitchell v. Shinseki, (2011). The examiner should also determine whether the Veteran has recurrent subluxation or lateral instability of the right knee and, if so, its severity. The examiner should also be requested to distinguish the degree of impairment due to the service-connected degenerative joint disease and degenerative meniscal tear of the right knee from any additional disability of the right knee caused by aggravation due to the Veteran's non-service-connected left knee total knee replacement, or to indicate that impairment may not be distinguished. See Mittleider v. West, 11 Vet. App. 181 (1998). The examiner is also asked to obtain a complete occupational history from the Veteran, and to provide an opinion as to whether it is at least as likely as not (50 percent or more probability) that the Veteran's service-connected right knee disability, without consideration of his non-service-connected disabilities and without regard to his age, renders him unable to secure or follow a substantially gainful occupation. A complete rationale for all opinions expressed must be provided, to include reference to specific clinical findings or documents in the claims file. 5. After completion of the above and any other development the RO/AMC should deem necessary, the RO/AMC should review the expanded record and readjudicate the claims on appeal. If the claims remain denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case, and should be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if otherwise 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).