Citation Nr: 1321990 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 09-44 318 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an increased rating for left knee degenerative joint disease and osteoarthritis, currently rated as 20 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: K. Lavan, Esq. WITNESS AT HEARING ON APPEAL Veteran and I.D. ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active military service from June 1982 to February 1984. This appeal arises to the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In May 2010, the Veteran reported that a physician had informed him of damage or other disability of the right knee, the low back, both hips, and both ankles, which were caused by a chronic limp related to the service-connected left knee. These secondary service connection claims have not been adjudicated. Therefore, they are referred to the RO for appropriate action. Where a claimant or the record raises the question of unemployability due to the disability for which an increased rating is sought, then a total disability rating based on individual unemployability (TDIU) is "part and parcel" of the increased rating claim. Rice v. Shinseki, 22 Vet. App. 447, 453-455 (2009). The Veteran has claimed that he cannot work because of his left knee disability. The appeal is remanded to the RO. REMAND Service connection is currently in effect for left knee degenerative joint disease, with osteoarthritis, and has been assigned a 20 percent disability rating based on limitation of motion. At his hearing before the Board in November 2012, the Veteran testified that symptoms of his left knee had increased in severity since his last VA examination in 2009. Accordingly, another examination to determine the current severity of the service-connected left knee disorder is necessary. Moreover, the Veteran has alleged that his left knee precludes working. Accordingly, the appeal is remanded for the following actions: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. Thereafter, the Veteran must be afforded a VA examination to determine the severity of his service-connected left knee disability. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All indicated tests and studies must be conducted, to include a magnetic resonance imaging scan and x-ray, if deemed necessary by the examiner to properly evaluate the Veteran's service-connected left knee disorder. The examiner must record pertinent medical complaints, symptoms, and clinical findings, including range of motion, and comment on the functional limitations, if any, caused by the service-connected left knee disorder. The examiner must determine the range of motion of the Veteran's service-connected left knee disorder, in degrees, must be accomplished with the use of a goniometer, noting by comparison the normal range of motion of the knee, with standard ranges provided for comparison purposes. If pain is present on any motion, the Veteran must be instructed to indicate to the examiner at what degree the pain begins and the examiner must report this finding. The examiner must address whether there is any weakened movement, incoordination, excess fatigability, or pain on movement as a result of the Veteran's service-connected left knee disorder after repetitions of the range of motion tests. The functional impairment due to weakened movement, incoordination, excess fatigability, or pain on movement must, if feasible, be assessed in terms of additional degrees of limitation of motion of the left knee disorder. With respect to any subjective complaints of pain, the examiner must comment on whether pain is visibly manifested on movement of the left knee, the presence and degree of, or absence of, muscle atrophy attributable to the service-connected left knee disorder, the presence or absence of changes in condition of the skin indicative of disuse due to the service-connected left knee disorder, and the presence or absence of any other objective manifestation that would demonstrate disuse or functional impairment due to pain attributable to the service-connected left knee disorder. The examiner must indicate whether the left knee disorder is manifested by recurrent subluxation or lateral instability and if so, whether these symptoms represent slight, moderate, or severe impairment of the left knee. The examiner must comment on the severity of these manifestations on the ability of the Veteran to perform average employment in a civil occupation. In this regard, the examiner must elicit from the Veteran, and record for clinical purposes, a full work and educational history. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether the Veteran's service-connected left knee disorder precludes him from securing and following substantially gainful employment consistent with his education and occupational experience. This opinion must be provided without consideration of his nonservice-connected disabilities, or age. The report of examination must include a complete rationale for all opinions expressed. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for any examination scheduled and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3. 158, 3. 655 (2012). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. After the requested examination has been completed, the RO must review the examination report to ensure that it is in complete compliance with the directives of this remand. The examination report must be returned to the examiner if it is deficient in any manner and the RO must implement corrective procedures at once. 5. Thereafter, the RO must ensure that the development above has been completed in accordance with the remand orders, undertake any other development action that is deemed warranted, and readjudicate the Veteran's claims. The RO must consider whether separate ratings are warranted of limitation of flexion of the left knee, limitation of extension of the left knee, and instability of the left knee. The RO must also consider extraschedular ratings are warranted for the left knee and TDIU. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).