Citation Nr: 1319462 Decision Date: 06/17/13 Archive Date: 06/27/13 DOCKET NO. 09-07 080A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to an evaluation in excess of 10 percent for right knee arthritis, with limited flexion. 3. Entitlement to an initial evaluation in excess of 10 percent for right knee arthritis, with limited extension. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD James D. Ridgway INTRODUCTION The Veteran served on active duty from June 1977 to June 1981. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In January 2011, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. The Veteran also perfected an appeal as to a claim for entitlement to service connection for a left knee disability. In an August 2010 rating decision, the RO granted service connection for traumatic arthritis of the left knee. As this is considered a full grant of the benefit sought on appeal, this issue is no longer before the Board. 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 While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran's claims. See 38 C.F.R. § 19.9 (2012). I. TDIU Claim Reasonably Raised Initially, the Board concludes that the issue of entitlement to a TDIU has been reasonably raised. As noted below, both the Veteran and Dr. A.M. have indicated that the Veteran will not be able to work after surgeries on his knees are completed. Therefore, the Veteran's entitlement to a TDIU is an issue within the matters on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (holding that TDIU is an element of all appeals of an increased rating and must be address if the possibility of the Veteran's unemployability is raised by the record). Any development needed in light of this reasonably raised claim should be undertaken on remand. II. Date of Claim for Right Knee and TDIU Claims The Board also notes that the right knee and TDIU claims are on appeal from a July 2007 rating decision, which was rendered in response to a January 2007 claim for increased benefits. In an April 1982 rating decision, the Veteran was granted service connection for right knee impairment. After several intervening claims, in January 2007, the Veteran sought an increased rating for his right knee disability. In a July 2007 decision, the RO denied the claim for a rating in excess of 10 percent for right knee limitation of flexion and assigned a separate 10 percent disability rating for right knee limitation of extension, based in part on findings in a March 2007 VA examination. Prior to the expiration of the appeal period, the Veteran submitted additional medical evidence including a December 2006 private treatment record detailing greater severity of the right knee disability. See 38 C.F.R. § 3.156 (2012). As new and material evidence was submitted prior to the expiration of the appeal period after the July 2007 rating decision, the right knee and TDIU claims remained pending. The claims were denied by the RO in October 2008 and the Veteran subsequently perfected an appeal to the Board. Hence, the right knee and TDIU claims should be considered on appeal from the July 2007 rating decision. This is important as it broadens the scope of evidence relevant to the claims. III. Other Development By way of background, a March 2007 VA examination indicated that the Veteran's right knee flexion was 70 degrees and his extension was limited to 10 degrees. It further indicated that the Veteran had pain upon repetitive use for flexion within the range of 10 to 70 degrees and indicated that the Veteran's endurance was limited to walking one block. In his March 2009 Substantive Appeal, the Veteran asserted that all of his medical conditions had worsened. He also included letters from physicians with his appeal. A two-sentence, December 2007 letter from Dr. H.S. states that the Veteran has back pain related to damage to his knees. An April 2008 letter from Dr. A.M. states that the Veteran has increased pain to his lower back due to an antalgic gate caused by the right knee condition. Dr. A.M's letter lists numerous diagnoses for the Veteran's knee conditions, but does not diagnose a back condition. In January 2011, the Veteran submitted a new letter from Dr. A.M. This letter was similar in many respects to his prior letter. However, it includes diagnoses of "lumbar spine sprain and strain with chronic antalgic gait" and "lumbar herniated nucleous pulposis L5-S-1, L2-3 both impinging on nerve roots." In addition, the letter indicates that the Veteran needs a total replacement of his right. At the same time, the Veteran also submitted a pre-hearing brief that argued that a new medical opinion should be requested on the issue of service connection for his back condition in light of an intervening grant of service connection for arthritis of the left knee. At his hearing in January 2011, the Veteran indicated that he may apply for Social Security Disability Benefits. He also indicated that his conditions had become severe and that he did not think that he could continue to work because of them. Finally in March 2011, the Veteran submitted another letter from Dr. A.M. Again, this letter was similar in most respects to the previous letter. However, it indicated that the Veteran's right knee flexion was limited to 30 degrees and his extension was limited to 15 degrees. It also indicated that the Veteran would be "totally disabled permanently" after his pending surgeries. As to the Veteran's claim for service connection for his back, the Board agrees with the request by the Veteran's representative for a VA medical examination of his back. The letters from Drs. H.S. and A.M. indicate that his back condition may be caused or aggravated by his service-connected knee conditions. See McLendon v. Nicholson, 20 Vet. App. 79, 83, (2006). However, the letters do not contain sufficient detail as to the reasoning or the level of certainty to grant the claim without more information. Id. As to the Veteran's right knee disability, the evidence suggests that he may have recently had surgery on the knee. No records of this surgery are in the Veteran's claims file. In addition, the statements by the Veteran and by Dr. A.M. in his March 2011 letter indicate that his right knee condition has worsened and will need to be reevaluated if he has knee surgery. Therefore, upon remand, the Veteran should be scheduled for a VA examination that evaluates the current severity of this disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Accordingly, the case is REMANDED for the following action: 1. Issue the Veteran notice consistent with the Veterans Claims Assistance Act of 2000 (VCAA) for his claim for a TDIU. 2. Request all documents pertaining to any application by the Veteran for SSA disability benefits, including the medical records considered in deciding the claim. All attempts to obtain such records must be documented in the claims file. If such records cannot be obtained, the Veteran must be properly notified before his claim is readjudicated. 38 C.F.R. § 3.159(e) (2012). 3. Ask the Veteran to provide authorization to obtain any outstanding, relevant treatment records, particularly records since the January 2011 Board hearing, to include records related to any knee surgeries. After securing the necessary authorization, these records should be requested. If any records are not available, the Veteran should be notified of such. 4. After the above has been accomplished to the extent possible, schedule the Veteran for a VA spine examination to determine the nature of any back disability, and to obtain an opinion as to whether such is possibly related to service or service-connected right knee disability. The entire claims file (both the paper file and any electronic portion of the file) must be made available to and be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted and the results reported. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that: (a.) Any current disability of the back was caused by the service-connected right knee disability; or (b.) Any current disability of the back was aggravated (permanently worsened) by the service-connected right knee disability. A rationale for all opinions expressed should be provided. 5. After the development requested in paragraphs 1 through 3 has been completed to the extent possible, schedule the Veteran for a VA knee examination to determine the extent and severity of his right knee disability and whether his knee disabilities preclude employment. The entire claims file (both the paper file and any electronic portion of the file) must be made available to and be reviewed by the examiner in conjunction with the examination. All necessary tests should be performed and the results reported. The examiner is asked to comment on the current symptoms of the service-connected right knee disability and their severity. Specifically, the examiner should detail the right knee range of motion, whether there is recurrent subluxation or lateral instability (and if so, the severity), and detail the effects of pain and repetitive use. In addition, the examiner is asked to offer an opinion regarding whether the Veteran's service-connected disabilities (post traumatic arthritis of the bilateral knees), without consideration of nonservice-connected disabilities, preclude him from obtaining or maintaining any gainful employment consistent with his education and occupational experience. 6. When the development requested has been completed, the case should again be reviewed to include the claim for a TDIU. If any benefit sought on appeal is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further 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). 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). _________________________________________________ LAURA H. ESKENAZI 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).