Citation Nr: 1315273 Decision Date: 05/09/13 Archive Date: 05/15/13 DOCKET NO. 07-38 495 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for left knee degenerative joint disease. 2. Entitlement to a disability rating in excess of 20 percent for right knee degenerative joint disease. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The Veteran served on active duty from May 1969 to April 1999. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota. The Veteran's claims file is now in the jurisdiction of the RO in Waco, Texas. The Board notes that the Veteran did not perfect an appeal of the RO's denial of a TDIU in the April 2007 rating decision. However, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Because the Veteran alleges that he cannot sustain substantially gainful employment due to his knee disabilities, the Board will consider entitlement to a TDIU rating in conjunction with the claims for increased ratings for left knee degenerative joint disease and right knee degenerative joint disease. The Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered. 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. REMAND In an August 2008 statement, the Veteran noted that he underwent a CAT scan in December 2006 which revealed arthritis in his knees. In addition, in a July 2010 statement, he noted that he was referred in September 2009 to the Temple VA Orthopedic Clinic for further evaluation and possible cortisone injection for his knees. At present, these records are not located in either the claims file or in Virtual VA. Furthermore, the most recent VA treatment records associated with the claims file and Virtual VA are dated in December 2011, nearly a year and a half ago. All outstanding and relevant VA medical records must be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The Veteran was last afforded a VA examination for his knees in February 2012, more than one year ago. Thereafter, in an April 2013 appellant's brief, his representative noted that the Veteran "continues to assert that his bilateral knee pain continues to worsen, and his range of motion has also worsened and become more painful." Therefore, the Board concludes that an updated examination is warranted. As noted above, because the Veteran alleges that he cannot sustain substantially gainful employment due to his knee disabilities, the Board will consider entitlement to a TDIU rating in conjunction with the claims for increased ratings for left knee degenerative joint disease and right knee degenerative joint disease. See Rice v. Shinseki, 22 Vet. App. 447 (2009). A TDIU is precluded for any period of gainful employment, which is generally defined as annual earnings exceeding the Bureau of the Census's poverty threshold. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009); 38 C.F.R. § 4.16. The record reflects that the Veteran has been employed as a vehicle state inspector. Payroll records from January 2006 through September 2006 reflect that he earned $10,259.64 for that nine-month period. In December 2006, his employer submitted a VA Form 21-4192 reflecting that the Veteran worked five days per week at that time and had earned $15,666 during the 12 months prior to the date of the report. In July 2010, the same employer submitted a statement noting that he had limited the Veteran to working only three days per week because of the Veteran's disabilities. No updated payroll or earnings information was provided. The Veteran should be sent an updated notice under 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159 that advises him about what is needed to substantiate a claim for a TDIU. In addition, the Veteran should be asked to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to obtain relevant employment information and to authorize VA to contact his employer for additional information regarding his employment. Furthermore, the Veteran should be asked to submit copies of his federal income tax returns for the years 2010, 2011, and 2012, to determine whether his earned annual income exceeded the Bureau of the Census's poverty threshold. Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran an updated notice under 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159 that advises him about what is needed to substantiate a claim for a TDIU. In addition, ask the Veteran to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to obtain relevant employment information and to authorize VA to contact his employer for additional information regarding his employment. Furthermore, ask the Veteran to submit copies of his federal income tax returns for the years 2010, 2011, and 2012, to determine whether his earned annual income exceeded the Bureau of the Census's poverty threshold. 2. Obtain all relevant and ongoing treatment records (including a December 2006 CAT scan which revealed arthritis in the Veteran's knees, and a September 2009 referral to the Temple VA Orthopedic Clinic for further evaluation and possible cortisone injection for his knees) from the VA Health Care System in Temple, Texas, and all associated clinics, as well as any other VA facility identified by the Veteran or in the record. 3. After the above development is completed, schedule the Veteran for a VA knees examination. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner is to describe the current severity and extent of all manifestations of the Veteran's service-connected left knee degenerative joint disease and right knee degenerative joint disease. All required testing must be performed. Specifically, the examiner should undertake range of motion studies of both knees and comment on the degree of disability due to functional losses such as pain, weakness, etc. All functional losses should be equated to additional loss of motion (beyond that shown clinically). Also, the examiner should discuss the presence or absence of any ankylosis (favorable or unfavorable) of the Veteran's knees. Furthermore, the examiner should specifically address whether the Veteran has recurrent subluxation or lateral instability of either knee; and if so, then the examiner should determine if that symptomatology is best characterized as "slight," "moderate," or "severe." The examiner should also address the extent to which the Veteran's service-connected left knee degenerative joint disease and right knee degenerative joint disease affect his ability to obtain or retain substantially gainful employment, without regard to his age or nonservice-connected disabilities. A complete rationale for all opinions expressed must be provided. 4. Review the claims file to ensure that all of the foregoing development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. For the TDIU claim, consider the provisions of 38 C.F.R. § 4.16(b) (which allow for a TDIU on an extraschedular basis). If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ MICHAEL MARTIN 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).