Citation Nr: 1325941 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-26 357 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to an initial disability rating for service-connected left knee disability in excess of 10 percent disabling. 2. Entitlement to a total disability rating claim based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from September 1972 to June 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated May 2010 and September 2008 of the Department of Veterans Affairs (VA) Regional Office (RO) in Harford, Connecticut. The May 2010 rating decision granted service connection for a left knee disability and assigned a 10 percent evaluation. The September 2008 rating decision denied the Veteran's claim of entitlement to TDIU. He disagreed with the denial and perfected his appeal in September 2009. The Board recognizes that the Veteran attempted to withdraw his TDIU claim in an October 2011 statement. However, during the pendency of the appeal as to the left knee claim, the Veteran has again asserted an inability to retain employment due to his service-connected left knee disability. See the Veteran's statement dated May 2013. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a total disability rating claim based on individual unemployability (TDIU) is part of an increased rating claim when raised by the record. As such, the issue is now properly before the Board. Rice, supra; see also VAOGCPREC 06-96, 61 Fed. Reg. 66749 (1996). The issues on appeal are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND After having carefully considered the matter, and for reasons expressed immediately below, the Board finds that the claims on appeal - entitlement to an increased rating for the service-connected left knee disability and entitlement to a TDIU - must be remanded for further development. In a May 2013 statement, the Veteran indicated that he was most recently afforded a VA examination in March 2013 which addressed his service-connected knee disabilities as well as his entitlement to TDIU. To this end, he submitted a copy of the last page of this VA examination report. A review of the Veteran's Virtual VA electronic file reveals a July 2013 letter from the RO indicating that the Veteran was provided with a copy of a report of a VA examination performed on July 9, 2013. Crucially, the most recent VA examination report contained in the Veteran's VA claims file (to include his Virtual VA electronic file) is a May 2010 VA examination report. Accordingly, the outstanding VA examination report(s) must be obtained and associated with the Veteran's claims file. Moreover, in reviewing the page from the missing VA examination report submitted by the Veteran, the Board notes that the conclusion rendered as to his employability pertains only to the right knee disability. The Board is therefore unclear as to the extent to which the missing VA examination report addresses the current severity of the service-connected left knee as well as the cumulative effect of the Veteran's service-connected disabilities on his ability to secure and follow substantially gainful employment. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Schafrath v. Derwinski, 1 Vet. App. 589 (1991) (holding that where the evidence of record does not reflect the current state of a veteran's disability, a VA examination must be conducted); 38 C.F.R. § 3.327(a) (2012). Therefore, an updated examination must be scheduled in order to address the Veteran's current left knee symptomatology. A VA examination is also necessary to determine whether the Veteran's service-connected disabilities, either singularly or jointly, render him unemployable. See 38 U.S.C.A. § 5103A (West 2002); see also Colayong v. West, 12 Vet. App. 524, 538-40 (1999); Friscia v. Brown, 7 Vet. App. 294, 297 (1994). Further, any ongoing medical treatment records should be procured and associated with the Veteran's claims file. 38 U.S.C.A. § 5103A(c) (West 2002). Accordingly, the case is REMANDED for the following action: 1. VBA should contact the Veteran and request that he identify any outstanding medical examination and treatment records pertaining to the issues currently on appeal. VBA should also take appropriate steps to secure any outstanding VA treatment records to include the March 2013 and July 2013 VA examination reports as well as any additional medical records identified by the Veteran and associate them with the VA claims file. 2. Then, the Veteran should be afforded a VA examination in order to determine the nature and extent of his service-connected left knee disability as well as the impact of his service-connected disabilities on his ability to secure and follow substantially gainful employment. The claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination, and a notation that this review has taken place should be made in the examination report. All indicated studies, including X-rays, should be performed. With respect to the service-connected left knee, all pertinent pathology should be noted in the evaluation report. In particular, the examiner should discuss any abnormalities that the Veteran displays in his left knee-to include any limitation of motion, instability, or ankylosis. [In this regard, complete range of motion should be performed.] Also, the examiner should discuss whether the Veteran's left knee exhibits weakened movement, excess fatigability, or incoordination. If feasible, this determination should be expressed in terms of the degree of additional range of motion lost. The examiner should also discuss the degree to which pain could significantly limit functional ability during flare-ups or when the Veteran uses his left knee repeatedly over a period of time. With respect to the claimed TDIU, the examiner should provide an opinion, with supporting rationale, as to whether it is at least as likely as not (i.e., 50% or greater probability) that the Veteran's service-connected disabilities (right and left knee disabilities as well as any other disabilities determined to be service-connected), either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation. Additionally, in rendering the opinion, consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. A report should be prepared and associated with the Veteran's VA claims file. Complete rationale for all findings and opinions rendered should be provided. 3. Thereafter, readjudicate the claims on appeal. If the benefits sought remain denied, the Veteran should be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. The Veteran 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). _________________________________________________ J.A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).