Citation Nr: 1317042 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 08-02 486 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a disability evaluation in excess of 20 percent for the right knee, to include entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The Veteran served on active duty from April 1978 to August 1986. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In March 2013, the Veteran presented testimony at a Board videoconference hearing conducted before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The Board notes that the Veteran maintained in his hearing testimony that he was unemployable due to his service-connected right knee. In May 2009, the United States Court of Appeals for Veterans Claims (Court) held that a request for a total rating based on individual unemployability due to service-connected disability (TDIU), whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities which is part of a pending claim for increased compensation benefits. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); see also Comer v. Peake, 552 F.3d 1362, 1366 (Fed. Cir. 2009) (the issue of entitlement to TDIU is not a free-standing claim which must be pled with specificity). Therefore, the Board has recharacterized the increased rating issue on appeal as listed on the first page, above. In addition to the paper claims files, there is an electronic file (Virtual VA) associated with the claim. Virtual VA does currently contain evidence pertinent to the claim that is not already included in the paper claims files, namely VA treatment records dated between 2009 and 2012. 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 A determination has been made that additional development is necessary in the current appeal as to the right knee disability. Accordingly, further appellate consideration will be deferred and this case is REMANDED to the AMC/RO for action as described below. In this case, a Supplemental Statement of the Case (SSOC) was issued in February 2009. In September 2012, VA medical records dated between 2009 and 2012 were added to the Virtual VA file; these records reflect treatment for the right knee disability. Private medical records showing right knee treatment were also added to the paper claims file. No Supplemental Statement of the Case (SSOC) was issued after these documents were added to the evidence of record. The case was thereafter transferred to the Board in February 2013. The RO was in receipt of pertinent VA and private medical records prior to the transfer of the claims file to the Board. Regarding evidence received prior to such a transfer, 38 C.F.R. § 19.37 states that an SSOC will be furnished unless the additional evidence received duplicates evidence previously of record which was discussed in the Statement of the Case (SOC) or a prior SSOC, or the additional evidence is not relevant to the issue, or issues, on appeal. In this case, pertinent VA and private medical information was newly obtained by the RO and was not addressed in the SOC or in any SSOC. An SSOC must be furnished to an appellant and his/her representative when additional pertinent evidence is received after a previous SOC or SSOC has been issued. 38 C.F.R. § 19.31. In this case, no such SSOC was issued after additional VA and private treatment records were added to the evidence of record. Since the additional evidence in question is neither duplicative of other evidence nor irrelevant, and since an SSOC pertaining to that evidence was not issued, this evidence must be referred back to the RO. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003); 38 C.F.R. § 20.1304. In addition, the Veteran has received treatment for his disability at VA facilities. However, only a portion of his records appear to have been included in the claims file. The claims file does not include any VA treatment records dated after June 2012 - even though the claims file was not transferred to the Board until 2013. Because such records could reflect the extent and severity of the claimed disability, VA is therefore on notice of records that may be probative to the claim. The AMC/RO should obtain all of the relevant VA treatment records generated since 2005 and not already of record, as well as any private records, and associate said records with the claims file. VA is, therefore, on notice of records that may be probative to the claim. See Robinette v. Brown, 8 Vet. App. 69 (1995). VA has a responsibility to obtain records generated by Federal government entities that may have an impact on the adjudication of a claim. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Thus, on remand, all pertinent VA treatment records and private treatment records must be obtained and associated with the claims file. Finally, review of the evidence of record reveals that the appellant was last afforded a VA orthopedic examination in July 2008 - almost five years ago. The Veteran indicated in his March 2013 videoconference hearing testimony that the right knee disability had worsened. In addition, he contends that he is entitled to separate evaluations for ligamentous instability and the removal of the medial meniscus in September 2005, as well as a separate evaluation for surgical scarring. Therefore, another VA examination is necessary. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The medical evidence of record is insufficient for the Board to render a decision. The considerations described above require a remand for further investigation by medical professionals, inasmuch as the Board is prohibited from substituting its own medical opinions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). In addition, the duty to assist includes obtaining medical records and examinations where indicated by the facts and circumstances of an individual case. See Murphy v. Derwinski, 1 Vet. App. 78 (1990). Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the appellant to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). Therefore, to ensure full compliance with due process requirements, this case is REMANDED to the AMC/RO for the following: 1. Assure that all notification and development action required by 38 U.S.C. A. §§ 5102, 5103, and 5103A, the implementing regulations found at 38 C.F.R. § 3.159, to include the requirements for TDIU and any other applicable legal precedent, has been completed. 2. Contact the Veteran and obtain the names and addresses of all medical care providers (private, VA, or other government) who have treated him for his service-connected right knee since September 2005. After securing the necessary release(s), obtain such records. In particular, VA treatment records dated from June 2012 onward must be obtained. 3. To the extent there is an attempt to obtain any of these records that is unsuccessful, the claims file should contain documentation of the attempts made. The Veteran and his representative should also be informed of the negative results and be given opportunity to secure the records. 4. After completing any additional notification and/or development action deemed warranted by the record, schedule the Veteran for a VA orthopedic examination to determine the nature, severity and extent of his current right knee pathology. The claims file must be available for review by the examiner in conjunction with the examination, and the report must state that such review has been accomplished. All indicated tests should be accomplished and all clinical findings should be reported in detail. The examiner must describe to what extent, if any, the Veteran has any right knee pathology or reduced function in the right knee, including any associated gait impairment or ligamentous instability. It must be determined whether there is any objective evidence of functional limitation due to pain caused by the service-connected right knee disability. If so, each of those limitations should be set forth in detail. The examiner must state whether or not the Veteran has any recurrent subluxation or lateral instability of the right knee. If so, the examiner must characterize such subluxation or lateral instability as slight, moderate or severe. The examiner must state whether the right knee disability encompasses dislocated cartilage, semilunar, with frequent episodes of locking, pain and effusion into the joint or removal of symptomatic semilunar cartilage. The examiner must test the range of motion of the Veteran's right knee. In reporting the results of range of motion testing, the examiner must identify any objective evidence of pain and the specific limitation of motion, if any, accompanied by pain. To the extent possible, the examiner must assess the extent of any pain. Tests of joint movement against varying resistance should be performed. The examiner must also describe the extent of any incoordination, weakened movement and excess fatigability on use. The examiner must also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups), and, to the extent possible, provide an assessment of the amount of additional loss of motion in degrees or the additional amount of functional impairment incurred on repeated use or during flare-ups. Specific findings must be made with respect to the location, size and shape of the scar(s) from any right knee surgery with a detailed description of any associated pain or tenderness as well as the presence of any disfigurement or any limitations caused by any adhesions or nerve impairment. 5. Upon receipt of the VA examination report, conduct a review to verify that all requested opinions have been provided. If information is deemed lacking, refer the report to the VA examiner for corrections or additions. 6. If any additional development is necessary to re-adjudicate the issue on appeal, especially in light of any newly received records, that development should be done. 7. Thereafter, re-adjudicate the Veteran's increased rating/TDIU claim on appeal. The readjudication must reflect consideration of all the evidence of record and be accomplished with application of all appropriate laws and regulations. 8. If the benefit sought on appeal remains denied, the Veteran and his representative must be provided a Supplemental Statement of the Case (SSOC), containing notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time must be allowed for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).