Citation Nr: 1312915 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 10-48 491 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for left knee degenerative arthritis. 2. Entitlement to a disability rating in excess of 10 percent for right knee degenerative arthritis. 3. Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disability. ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1982 to December 1994. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which, in relevant part, denied the Veteran's increased disability rating claims for his service-connected knee disabilities. Jurisdiction over the Veteran's claim has remained with the RO in Winston-Salem, North Carolina. A review of the record reveals that the Veteran was originally represented in his appeal by North Carolina Division of Veterans Affairs. In a March 2011 statement, however, the Veteran indicated that he terminated that organization's representation of him, and that he wished to represent himself in his appeal. The Board finds that as a result of findings made during the Veteran's most recent July 2009 VA examination, a TDIU claim has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board has jurisdiction to consider entitlement to a TDIU in an appealed claim for an increased rating when the issue is raised by assertion or reasonably indicated by the evidence, regardless of whether the RO expressly addressed the issue. See VAOPGCPREC 6-96 (Aug. 16, 1996); see also Caffrey v. Brown, 6 Vet. App. 377, 382 (1994); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Therefore, this issue has been added for current appellate consideration. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND The Veteran was last afforded a VA examination to assess the severity of his service-connected knee disabilities in July 2009. In the examination report, the VA examiner noted that the Veteran experienced symptoms of instability, giving way, pain, stiffness, and weakness in his left knee. She did not, however, indicate the severity of the instability of the Veteran's left knee (i.e., slight, moderate, or severe). Such a determination is of important to determine the appropriate disability rating for the service-connected disability. See 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2012). The VA examiner additionally noted that the Veteran experienced severe flare-ups of joint disease in his left knee on a weekly basis. She noted that he had a 40 percent limitation of motion during flare-ups. It is not clear, however, whether such limitation was in addition to his already reduced range of motion noted to be limited to 90 degrees of flexion, or whether such limitation additionally affected the range of extension. Moreover, while the VA examiner noted symptoms of pain in both of the Veteran's knees and indicated that there was objective evidence of pain with active motion on the left and right sides, she did not further indicate whether his ranges of motion were further limited by pain. In short, the VA examiner did not appear to fully consider additional limitations of function, to include limitation of motion, of the Veteran's service-connected bilateral knee disability as a result of such symptoms as pain, weakened movement, excess fatigability, incoordination, or during flare-ups, as required by the holding of the United States Court of Appeals for Veterans Claims (Court) in DeLuca v. Brown, 8 Vet. App. 202 (1995). Accordingly, the increased disability rating claims must be remanded in order to schedule the Veteran for a new and contemporaneous VA examination to fully assess the severity of his knee disabilities. With respect to the Veteran's derivative TDIU claim, the Board cannot fairly adjudicate that claim without first obtaining an adequate medical opinion regarding the effects of his service-connected knee disabilities on his ability to secure or follow substantially gainful employment. As noted by the Court in Friscia v. Brown, 7 Vet. App. 294, 297 (1994), the Board may not reject a claim for a TDIU without producing evidence, as distinguished from mere conjecture, that the Veteran can perform work that would produce sufficient income to be other than marginal. See also Ferraro v. Derwinski, 1 Vet. App. 362, 331-32 (1991). Here, while the July 2009 VA examiner noted that the Veteran's knee disabilities had significant effects on his employment, requiring the assignment of different duties and increased absenteeism, it is unclear whether his disabilities preclude him from securing or following substantially gainful employment. Finally, private treatment records dated from May 2008 to June 2009 pertaining to the Veteran's service-connected knee disabilities were associated with the claims file. These records indicate that the Veteran underwent surgery on his left knee to treat a patella tendon rupture in May 2008. The operative report for this surgical procedure, however, appears to have not been obtained. The operative report as well as any additional treatment records dated since June 2009 should also be obtained on remand. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). Accordingly, these claims are REMANDED for the following: 1. Ask the Veteran to provide authorization for VA to obtain outstanding treatment records for his knee disabilities from Triangle Orthopaedic Associates, P.A., to include a copy of the operative report for his May 2008 left knee surgery, and additional treatment records dated since June 2009. Authorization should also be obtained for additional treatment records from any other private healthcare providers that have treated his service-connected knee disabilities. If the Veteran fails to provide needed authorizations, tell him that he should obtain the records and submit them himself. If any requested records cannot be obtained, inform the Veteran; also tell him what efforts were made to obtain the records and what additional actions will be undertaken with regard to his claims. 2. Thereafter, schedule the Veteran for a VA examination to assess the severity of the service connected knee disabilities. The claims file and a complete copy of this REMAND should be reviewed in association with the examination. The VA examination report or addendum should indicate that this has been accomplished. All necessary studies and tests should be conducted. The examiner should specifically address the following: a) Report the Veteran's ranges of flexion and extension in each knee in degrees. b) The examiner should determine whether the disability of either knee is manifested by weakened movement, excess fatigability, incoordination, flare-ups or pain. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain; or during flare-ups. Additionally, determine whether the Veteran has favorable or unfavorable ankylosis of either knee. c) State whether there is objective evidence of lateral instability or subluxation of either knee, and if so, the degree (i.e., slight, moderate, severe) of such instability and/or subluxation. c) The examiner should additionally provide an opinion with respect to whether the Veteran's service-connected knee disabilities render him unable to secure or follow a substantially gainful occupation for which his education and experience would qualify him. The examiner must provide reasons for all opinions. 3. Thereafter, the agency of original jurisdiction (AOJ) should review the claims file to ensure that the foregoing requested development has been completed. In particular, thoroughly review the VA examination report to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. 4. If there is any period beginning one year prior to the current claim when the Veteran did not meet the percentage requirements for TDIU and was unemployed or earning less than the poverty rate for one person, refer the claim to the Director of VA's Compensation and Pension (C&P) Service for adjudication in accordance with 38 C.F.R. § 4.16(b) (2012). 5. If the benefits sought on appeal are not granted in full, issue a supplemental statement of the case; and return this appeal to the Board, if otherwise in order. 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). These claims 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). _________________________________________________ Mark D. Hindin 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. See 38 C.F.R. § 20.1100(b) (2012).