Citation Nr: 1309043 Decision Date: 03/18/13 Archive Date: 03/25/13 DOCKET NO. 10-40 402 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for degenerative arthritis of the right knee. 2. Entitlement to an evaluation in excess of 10 percent for degenerative arthritis of the left knee. 3. Entitlement to a total evaluation based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Paul Goodson, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from December 1984 to December 1987. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In June 2012, the Veteran testified before the undersigned Veterans Law Judge by videoconference hearing. A copy of the transcript is associated with the claims file. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The issue of entitlement to service connection for depression secondary to service-connected arthritis of the knees has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO. VA will notify the Veteran if further action is required. REMAND VA's duty to assist includes obtaining a medical examination or opinion where necessary to decide the claim. 38 C.F.R. § 3.159. Furthermore, when a Veteran claims that his condition is worse than when originally rated, VA's duty to assist includes providing a new examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997). In this case, VA examinations were conducted in November 2008 and March 2010. The Veteran testified in June 2012 that the VA examinations were inadequate because the examiner failed to measure his range of motion with a gonimeter. His attorney noted that, as the disability ratings are predicated on range of motion and the range of motion has been no more than eye-balled, reexamination is necessary to obtain accurate medical findings. Additionally, the Veteran testified that he now has instability of the knees, which was not shown on prior VA examinations. He reported that he nearly fell on two occasions. In view of the Veteran's testimony, the Board finds that remand is necessary for reexamination to ensure that VA has met its duty to assist obligations. A VA examination report must described the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991). See also, Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). Here, credible evidence has been presented indicating that the range of motion findings may not be accurate. Also, credible evidence has been presented indicating that there has been a material change in the severity of the Veteran's service- connected knee disorders since he was last examined. Specifically, the Veteran reports of instability and use of a metal brace since his last VA examination. Where there is a material change in the severity of the disorder, reexamination is warranted. See 38 C.F.R. § 3.327(a). Because the issue of TDIU is inextricably intertwined with the claims for increase, the Board must defer consideration of this claim. However, because the Veteran avers that he is unemployable due to service-connected bilateral knee disability, a medical opinion addressing whether the Veteran is precluded from obtaining or retaining substantially gainful employment due to service-connected bilateral knee disability should be obtained. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain all VA treatment records dated since August 2010 to include those located at Charlotte and Salisbury VA Clinics/Medical Centers. 2. The Veteran should be scheduled for a VA examination to determine the current severity of his service-connected disability of the knees. All appropriate studies should be conducted to include range of motion testing with a gonimeter. All clinical findings should be reported in detail. The examiner should opine on whether the Veteran is precluded from obtaining or retaining substantially gainful employment due to service-connected disability. The claims file along with any pertinent medical records located in the Veteran's Virtual VA file should be made available to and reviewed by the examiner. The examiner should specifically indicate use of a gonimeter in the report of examination and review of the medical records in the claims file and/or Virtual VA system. 3. The RO should conduct any other development deemed to be appropriate and ensure that the report of VA examination includes the necessary rating information for evaluating the disabilities at issue. 4. Following completion of the above development, the RO should readjudicate the Veteran's claims. If any benefit sought on appeal remains denied, the Veteran and his attorney should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. The Veteran 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). _________________________________________________ MICHAEL LANE 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).