Citation Nr: 1308630 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 10-49 270 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an increased evaluation for left knee degenerative lateral meniscus tear, with degenerative joint disease and lateral compartment post arthroscopies, currently evaluated as 10 percent disabling. 2. Entitlement to a total disability rating based on unemployability due to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from July 1980 to July 1984 and from July 1985 to June 1990. He also had service in the United States Army Reserves. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia South Carolina. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND The Veteran seeks a disability evaluation in excess of 10 percent for his service-connected left knee disorder. The record reveals that the Veteran underwent left knee surgery, to include a partial lateral meniscectomy, on October 28, 2009. In December 2009, he was examined by VA for disability evaluation. The claims file was not available to the examiner for review. The examiner noted swelling of the knee, as well as guarding due to the recent surgery. During his October 2011 hearing before the Board, the Veteran claimed that the December 2009 examination was inadequate, since he was on crutches at that time and in a cast from his surgery. Additionally, he testified that his left knee disorder had worsened since the December 2009 examination. VA's duty to assist includes the conduct of a thorough and comprehensive medical examination. Robinette v. Brown, 8 Vet. App. 69, 76 (1995); see also Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding that the Board should have ordered a contemporaneous examination of Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). During the pendency of this appeal, the issue of entitlement to a total disability rating for compensation based on individual unemployability (TDIU) was raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). During his October 2011 hearing before the Board, the Veteran testified that he was unable to work at his job at the U.S. Post Office due to his left knee disorder. Thus, the issue of entitlement to TDIU has been raised by the record. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (finding that once a Veteran submits evidence of medical disability and additionally submits evidence of unemployability, VA must consider total rating for compensation based upon individual unemployability). As the RO has not yet adjudicated TDIU, the issue must be remanded to the RO for consideration. Accordingly, the case is remanded for the following action: 1. The RO must comply with the duty to notify provisions with respect to the Veteran's claim of TDIU, as well as any duty to assist procedures. 2. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of his response, the RO must attempt to obtain of the Veteran's treatment by VA since 2010. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must be given an opportunity to respond. 3. Thereafter, the Veteran must be afforded an examination to determine the current severity of his service-connected left knee degenerative lateral meniscus tear, with degenerative joint disease and lateral compartment post arthroscopies. The claims file and all records on Virtual VA must be made available to the examiner and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Any indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings must be reported in detail. Range of motion testing must be accomplished and the examiner must provide ranges of motion for flexion and extension with a goniometer. If there is clinical evidence of pain on motion, the examiner must indicate the specific degree of motion at which such pain begins. The same range of motion studies must then be repeated after at least three repetitions and after any appropriate weight-bearing exertion. The examiner must note whether pain, incoordination, excess fatigability, weakened movement, repetitive motion and/or flare-ups further limit his range of motion and, if so, the degree to which range of motion is limited. The examiner must indicate whether ankylosis of the left knee is present, and, if so, the degree at which it is present. The examiner must document whether recurrent subluxation or lateral instability is present, and, if so, whether it is slight, moderate, or severe. The examiner must note whether there is evidence of a dislocated semilunar cartilage other than a lateral meniscus with frequent episodes of locking, pain, and effusion into the joint or symptoms of a meniscectomy. The examiner must relate whether the lateral meniscectomy is symptomatic and, if so, whether the symptoms are encompassed in limitation of motion or instability or both. The examiner must note whether there is any residual cartilage damage. The examiner must note whether there is nonunion or malunion of the tibia and fibula. If malunion is present, the examiner must indicate whether it is slight, moderate, or marked. The examiner must also note whether there is genu recurvatum. Further, the examiner must document the effects of the service-connected left knee disorder on his ability to maintain employment consistent with his education and occupational experience. The examiner must elicit from the Veteran and record for clinical purposes a full work and educational history. Based on a review of the case, the examiner must provide an opinion as to whether the Veteran's service-connected left knee disability precludes him from securing and following substantially gainful employment consistent with his education and occupational experience. All opinions provided must include an explanation of the bases for the opinion. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report must be typed. 4. The RO must notify the Veteran that it is his responsibility to report for the scheduled VA examination 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 (2012). In the event that the Veteran does not report for the scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. Copies of all documentation notifying the Veteran of any scheduled VA examination must be placed in the Veteran's claims file. 5. The examination report must be reviewed by the RO to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 6. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the RO must readjudicate the issue regarding an increased evaluation for a left knee disorder, and adjudicate the issue of whether TDIU is warranted. If the claims remain denied, a supplemental statement of the case which must address all evidence associated with the file since the issuance of the July 2010 statement of the case, must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).