Citation Nr: 1316446 Decision Date: 05/20/13 Archive Date: 05/29/13 DOCKET NO. 08-00 990 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an increased rating for calcification of the left medial collateral ligament, currently evaluated as 10 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1969 to April 1971. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the Veteran's claims for entitlement to service connection for posttraumatic stress disorder (PTSD) and a compensable rating for calcification of the left medial collateral ligament. In an October 2011 rating decision, the Appeals Management Center (AMC) granted service connection for PTSD and assigned a 30 percent disability rating, effective January 27, 2005, the date the claim for service connection was received. The AMC also increased the rating for calcification of the left medial collateral ligament to 10 percent, effective October 7, 2005, the date the claim for increase was received, and an additional 10 percent disability rating was granted for instability of the left knee, effective July 15, 2010, the date that it was determined that instability was objectively demonstrated. As the October 2011 grants did not represent a total grant of benefits sought on appeal with respect of the Veteran's service-connected calcification of the left medial collateral ligament, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The claim for an increased rating for calcification of the left medical collateral ligament was remanded by the Board in March 2010 for additional development. The case is now before the Board for further appellate consideration. The Board finds that correspondence received from the Veteran's representative during the pendency of the appeal, in April 2013, reasonably raises the issue of entitlement to a TDIU. In light of the Court of Appeals for Veterans Claims holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board considers the claim for a TDIU as part of the Veteran's pending claim for an increased rating for calcification of the left medial collateral ligament. Thus, the Board has rephrased the issues as listed on the title page to better reflect the claims on appeal. 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 Board's review of the claims file reveals that further development is necessary before the claims on appeal can be properly adjudicated. Increased Rating As noted above, the Board remanded this matter in March 2010 for additional development. In relevant part, the Board directed that the Veteran be afforded an additional VA examination of his service-connected left knee disability with discussion of any functional limitation or symptomatology resulting from his service-connected left knee disability and that the claim be readjudicated. The Veteran was afforded an additional VA examination in July 2010. The examiner noted that his left knee disability was manifested by interconcurrent sharp and sticking medial left knee pain. A history of flare-ups of increased aching medial left knee pain and swelling was noted which occurred every four to six weeks and resulted in use of a cane during certain flare-ups that more were uncomfortable than others, use of a neoprene knee brace, and restriction of pivotal movement at the waist for bending, kneeling, squatting type movements. On physical examination, range of motion of the left knee was from 0 degrees of unlimited extension to 126 degrees of limited flexion secondary to pain and stiffness of the left knee, but not weakness, incoordination, or fatigability. The examiner stated that there was no further functional limitation of range of motion following repetitive range of motion testing by the aforementioned cited factors. On review, the Board finds that the July 2010 VA examination is inadequate for rating purposes as the examiner did not attempt to quantify additional functional limitation of range of motion of the left knee during flare-ups. The Veteran's report that he limits pivotal movements to his waist rather than his knee during flare-ups suggests that there may be additional functional limitation associated with flare-ups of left knee pain. Thus, it is necessary to obtain an additional VA examination so that any additional functional limitation of the left knee during flare-ups, if possible, may be quantified in terms of additional limitation of range of motion of the left knee in degrees. Moreover, as the July 2010 examination is now more than 2 years old and the representative's request that entitlement to a TDIU be considered in connection with the claim for increase suggests that the Veteran's left knee disability may have worsened since the July 2010 examination. Accordingly, it is necessary to afford the Veteran an additional VA examination so that functional limitation of range of motion may, if possible, be quantified in terms of degrees of limitation of range of motion and for a determination as to any impact that the Veteran's left knee disability has on his ability of obtain and maintain substantially gainful employment. Finally, as alluded to above, in the April 2013 appellate brief, the Veteran's representative requested that entitlement to a TDIU be considered. A request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, when entitlement to TDIU is raised during the appeal of a rating for a disability, it is part of the claim for benefits for the underlying disability. Id. at 454. The Veteran's service-connected disabilities include PTSD (30 percent), Type II diabetes mellitus associated with herbicide exposure during service (20 percent), coronary artery disease status-post myocardial infarction associated with herbicide exposure during service (10 percent), peripheral neuropathy of each upper and lower extremity associated with Type II diabetes mellitus (10 percent for each upper and lower extremity), erectile dysfunction associated with Type II diabetes mellitus (0 percent), right ear hearing loss (0 percent), calcification of the left medial collateral ligament (10 percent), and left knee instability associated with calcification of the left medial collateral ligament (10 percent). Currently, the Veteran's combine disability rating is 80 percent, effective July 15, 2010. The claim of entitlement to a TDIU is inextricably intertwined with the claim for a higher evaluation for the Veteran's service-connected calcification of the left medial collateral ligament, and must be deferred pending readjudication of that claim. Harris v. Derwinski, 1 Vet. App. 180(1991). As the claim for a TDIU was inferred by the Board, the Veteran should be provided with VCAA notice as to the information and evidence necessary to substantiate his claim for a TDIU. The RO/AMC should take this opportunity to obtain any ongoing or additional VA treatment records which have not been obtained, and to obtain an examination in regard to the claim for a TDIU. In this regard, VA treatment records should be obtained from the St. Louis VA Medical Center, to include records of any treatment received at the Jefferson Barracks Division, dating since April 2008. Additionally, a May 2006 VA treatment record indicates that the Veteran is or was also being followed by a private doctor. Accordingly, the Veteran should be requested to identify and submit, or request VA assistance in obtaining, any private treatment records pertaining to his left knee and other service-connected disabilities dating since October 2004. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with proper VCAA notice as to the information and evidence needed to substantiate his claim for a TDIU. 2. Obtain all outstanding pertinent VA medical and psychiatric treatment records from the St. Louis VA Medical Center, to include any records from the Jefferson Barracks Division, dating since April 2008. All records and/or responses received should be associated with the claims file. 3. The appellant is invited to present or request VA's assistance in obtaining any evidence, particularly medical evidence, which tends to show that he is unable to work solely due to service-connected physical and psychiatric disabilities. 4. Thereafter, arrange for the Veteran to undergo an appropriate VA examination(s) to determine the severity of his left knee disability and to determine the impact of service-connected disabilities on his ability to obtain and maintain substantially gainful employment. The claims folders, to include any relevant records in Virtual VA, must be thoroughly reviewed by the examiner(s) in connection with the examination and notation to the effect that such review has occurred should be documented in the examination report. Any tests and studies deemed necessary by the examiner(s) should be conducted. All findings should be reported in detail. The examiner(s) should describe all pertinent symptomatology in regard to the left knee and address the relevant rating criteria necessary for evaluation. The examiner(s) should also discuss any functional and occupational impairment caused by the left knee, as well as any relevant functional and occupational impairment resulting from any of the Veteran's service-connected disabilities that is relevant to the question of employability. As to the calcification of the left medical collateral ligament with instability, the examiner should: a. specifically state range of motion findings using a goniometer, and indicate on the examination report that a goniometer was used; b. comment on whether this disability exhibits weakened movement, excess fatigability, incoordination, or pain on use attributable to the service-connected calcification of the left medical collateral ligament (if feasible, these determinations should be expressed in terms of the degree of additional range of motion loss due to these symptoms); c. discuss whether pain significantly limits functional ability during flare-ups or following repeated use (these determinations should also, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups); and d. describe the severity of any subluxation or lateral instability of the left knee. Following review of the claims file, and appropriate examination and interview of the Veteran as to each additional service-connected disability, an opinion must be offered as to whether it is at least as likely as not (50 percent probability or better) that the Veteran's service-connected disabilities, either alone or in combination, render him unable to secure or follow a substantially gainful occupation for which his education and occupational experience would otherwise qualify him. The examiner should reconcile any opinion with all other clinical evidence of record and the Veteran's contentions. A complete rationale should be provided for any opinion expressed. If any opinion cannot be provided without resort to speculation, the examiner should so state and provide a rationale for why the opinion would require resort to speculation. 5. The Veteran is to be notified that it is his responsibility to report for the examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). 6. After the development requested has been completed, the RO/AMC should review the examination report(s) to ensure that they are in complete compliance with the directives of this REMAND. The RO/AMC must ensure that the examiner(s)s documented their consideration of Virtual VA. If the report is deficient in any manner, the RO/AMC must implement corrective procedures at once. 7. After the completion of any action deemed appropriate in addition to that requested above, the RO/AMC must readjudicate the claims of entitlement to an increased rating for calcification of the left medial collateral ligament and entitlement to a total disability evaluation based on individual unemployability due to service-connected disability. All applicable laws and regulations should be considered. If any benefit sought remains denied, the appellant and his representative should be provided a supplemental statement of the case and given the opportunity to respond. The Board notes that under the Rice decision the Veteran has already perfected an appeal to any denial of individual unemployability. 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). 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).