Citation Nr: 1315737 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 09-24 640 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an increased rating greater than 20 percent for post-operative left knee osteoarthritis. 2. Entitlement to an increased rating greater than 10 percent for right knee osteoarthritis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from September 1975 to April 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which granted an increased rating of 20 percent for the service-connected left knee disability and continued the 10 percent rating for the service-connected right knee disability. The Veteran had a hearing before the undersigned in February 2013. A transcript of the proceeding has been reviewed and associated with the Veteran's Virtual VA file. The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence. The Board notes that the issue of entitlement a total disability rating based on individual unemployability (TDIU) has not been raised based on the current record. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims held that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the claimant. The Court further held that when evidence of unemployability is submitted at the same time that the claimant is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. Here, the Veteran testified that he works 20 hours per week and earns $11.45 per hour and a night differential of 75 cents, which exceeds the poverty rate of $11,945. If this information is not correct, if the Veteran's earnings have decreased, or if other circumstances concerning employment have changed, he should notify VA. 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 alleges his service-connected right and left knee disabilities warrant higher ratings. Having reviewed the claims file, the Board finds that additional development is necessary prior to the adjudication of these claims. During his February 2013 Board hearing, the Veteran testified that his bilateral knee problems had increased in severity since the most recent July 2012 VA examination. The Veteran testified as to problems with pain and instability. In this regard, he noted that he could hardly get up without instability. The Court has held that a veteran is entitled to a new VA examination where there is evidence, including his statements, that the disability has worsened since the last VA examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The Court has also held that VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). In light of the Veteran's contentions, the claims must be remanded in order to afford the Veteran a VA examination to determine the current severity of his bilateral knee disabilities. In addition, the Veteran testified to receiving on-going treatment for his knees through Kaiser Permanente. Efforts should be made to obtain records from this facility from September 2008. In addition, the Veteran has reported an intent to use VA service for treatment of his bilateral knees. As such, efforts should be made to obtain VA treatment records from July 2012. The Veteran also testified that he ultimately lost his government employment due to problems with his knees. As his former employer may have information relevant to his claims, he should be asked to provide sufficient information to allow VA to attempt to obtain relevant records from the agency. Finally, the Board acknowledges that the Veteran has reported seeking disability benefits from the Social Security Administration (SSA). That said, during his February 2013 Board hearing the Veteran acknowledged that his SSA claim was denied based on his stated income and that no medical information was created or obtained as part of that claim. As such, the Board concludes that seeking records from SSA would serve no useful purpose. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (holding that VA is not required to obtain SSA records in all cases but only where potentially relevant to the claims on appeal). Accordingly, the case is REMANDED for the following action: 1. Obtain all medical records and hospitalization records for the Veteran's condition from all applicable VA medical facilities from July 2012 to the present. Any negative responses should be documented in the file and the Veteran must be provided with an opportunity to provide such medical records pursuant to 38 C.F.R. § 3.159(e). 2. Request that the Veteran provide relevant contact information and release form authorization for Kaiser Permanente Health Plan of Colorado (and any associated private treatment providers) from September 2008 to the present. In the alternative, the Veteran should be notified that he may provide the private treatment records to VA directly. He should also be asked to provide sufficient information concerning his former employer, a government agency, to allow VA to obtain relevant records concerning the impact of his service-connected disabilities on his employment with that agency. If, after making reasonable efforts to obtain named non-VA records the AMC is unable to secure same, or if after continued efforts to obtain federal records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 3. After the above evidence is obtained, to the extent available, schedule the Veteran for an appropriate VA examination, to include a complete physical examination, in order to determine the current severity of his bilateral service-connected knee disabilities. The complete claims file must be provided to the examiner for review in conjunction with the examination, and the examiner should note that it has been reviewed. Attention is invited to the Veteran's hearing testimony describing the effects and symptoms of his service-connected knee disabilities. All tests deemed necessary should be conducted, and all clinical findings should be reported in detail. If instability or recurrent subluxation is objectively found, it must be so noted. In this regard, the Veteran reports falling, and the knees "giving way." The examiner should also conduct range of motion studies and indicate whether there is weakened movement, excess fatigability, incoordination or pain. These determinations should be expressed, to the extent possible, in terms of the degree of additional range-of-motion loss that is due to any weakened movement, excess fatigability, incoordination, or pain, to include on repetitive use or on flare-ups. 4. After the above is complete, readjudicate the Veteran's claims. If a complete grant of the benefits requested is not granted, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. 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). _________________________________________________ S. S. TOTH 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).