Citation Nr: 1323825 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 09-18 848 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial compensable rating prior to February 25, 2010, and thereafter a 10 percent rating for left knee patellofemoral syndrome (left knee disability). 2. Entitlement to an initial compensable rating prior to February 25, 2010, and thereafter a 10 percent rating for right knee disability, currently identified as degenerative joint disease (right knee disability). 3. Entitlement to a total disability rating due to individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1987 to May 1994. These matters come to the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In that rating decision, the RO awarded service connection for bilateral patellafemoral syndrome and assigned a noncompensable rating, effective from February 7, 2008. By the way of a March 2010 rating decision, the RO separated the bilateral knee disability into two awards, one for right knee disability and one for left knee disability, and award each knee a 10 percent rating, effective from February 25, 2010. As this did not represent the maximum evaluation available, the matter remains on appeal with regard to both identified stages. AB v. Brown, 6 Vet. App. 35 (1993). The Board notes that the RO issued a statement of the case identifying the issues of entitlement to earlier effective dates for the grant of compensable evaluations for the Veteran's knee disabilities as issues on appeal. However, inasmuch as the Veteran has continued to express disagreement with the initial evaluation assigned and under VA law separate "staged" ratings may be assigned for separate periods of time based on the facts found, the Board has identified the issues on appeal as indicated above. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In Rice v. Shinseki, the Court of Appeals for Veterans Claims (Court) held that a TDIU rating claim is part of an increased rating claim when such claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In this case, issue of TDIU has been raised by the record. A TDIU rating claim is part and parcel of the increased rating claim, and is therefore properly before the Board. Id. Thus, the issues on appeal are as noted on the title page. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present 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 While further delay is regrettable, the Board finds that further development is required prior to adjudicating the appellant's claims. Initially, the Board notes that the record shows the Veteran has been awarded disability benefits from the Social Security Administration (SSA) since April 2010. See May 2011 VA treatment record. The evidence of record does not contain any SSA records, and there is no indication such were sought. Although it is unclear for what disabilities the Veteran has been awarded disability benefits, since the SSA record may contain pertinent information relating to the Veteran's claims, an effort must be made to obtain them. Review of the record indicates that the Veteran's last VA examination for his service-connected right and left knee disabilities was in October 2010. Upon review, the Board finds that a more current examination is necessary to properly evaluate the severity of these conditions. The Board also notes that the VA treatment records demonstrate that the Veteran has been receiving continuous treatment for his service-connected disabilities at his local VA outpatient treatment facility. Given that the most recent VA outpatient treatment records are dated in May 2011, a request for additional records must be made. Finally, as noted above, the Board finds that the record has raised a claim for a TDIU rating. Rice v. Shinseki, supra. In light of Rice, the fact that a TDIU rating claim is inextricably intertwined with the increased rating claim and the fact that the Veteran has not received appropriate notice regarding the TDIU issue, the Board finds that the claim for a TDIU rating must also be remanded. Accordingly, the case is REMANDED for the following action: 1. Any determination pertinent to the Veteran's claim for SSA benefits, as well as any medical records relied upon concerning that claim, must be obtained from SSA and associated with the claims file. All reasonable attempts must be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which must be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Obtain and associate with the claims file all outstanding records of VA treatment since May 2011. All records/responses received should be associated with the claims file. All efforts to obtain the records should be fully documented, and the facility must provide a negative response if records are not available. 3. Once all the available records have been associated with the claims folder, the RO/AMC should schedule the Veteran for VA orthopedic examinations to evaluate the nature and severity of his right knee and left knee disabilities. The claims file shall be made available to and reviewed by the examiners, and the examiners shall note such review in an examination report. All indicated diagnostic studies and evaluations deemed necessary shall be performed, and all findings shall be reported in detail. The examiner should fully evaluate the Veteran's right knee and left knee disabilities. In so doing, the examiner should comment on the Veteran's reports regarding symptomatology and describe all objective findings. In particular, the examiner should specifically undertake range of motion studies of the knees and comment on the degree of disability due to functional losses such as pain, weakness, etc. All functional losses should be equated to additional loss of motion (beyond that shown clinically). If pain on motion is observed, the examiner must indicate the point at which pain begins. In addition, after considering the Veteran's documented medical history and assertions, the examining physician must indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use. To the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. If there are indications that the Veteran is exaggerating his complaints, those indications should be recorded by the examiner, and to the extent possible, the examiner should provide an opinion as to the more likely functional loss due to the Veteran's disabilities. Lastly, the examiner should opine whether the Veteran is unable to secure or maintain substantially gainful employment in light of his service-connected disabilities and in consideration of his level of education, experience, and occupational background. The examiners must discuss the rationale for all opinions expressed. If an examiner is unable to address any inquiry sought above, then he or she should explain why. 4. After accomplishing any additional development deemed appropriate, readjudicate the claims remaining on appeal. The claims for increased ratings for the service-connected right and left knee disabilities. If the benefits sought in connection with the claims remain denied, the Veteran should be provided with an appropriate Supplemental Statement of the Case (SSOC) and given the opportunity to respond. 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). _________________________________________________ DAVID L. WIGHT 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).