Citation Nr: 1326729 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 10-47 141A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a rating in excess of 10 percent for right knee degenerative joint disease (DJD). 2. Entitlement to a rating in excess of 10 percent for left knee DJD. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from October 1974 to October 1994. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In July 2012, the Veteran testified at a Board hearing; however, because the audio recording could not be transcribed, he was given another opportunity for a hearing. In March 2013, the Veteran and his spouse testified at a videoconference hearing before the undersigned Acting Veterans Law Judge; a transcript of the hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ) 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). The Veteran last underwent a VA examination for the purposes of evaluating his service-connected knee disabilities in April 2012. During the Board hearing, the Veteran testified that his symptoms have worsened since that examination and that he now has bilateral knee instability. Board Hearing Tr., at 3, 9. In support of his assertions, he submitted a March 2013 letter from a VA physician (Dr. G.W.) stating that the Veteran had been prescribed bilateral knee braces for osteoarthritis with patellar instability. VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (Apr. 7, 1995); see Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, the Board finds that an additional VA examination is necessary for the purpose of ascertaining the current severity and manifestations of the Veteran's service-connected right and left knee disabilities. The record also shows that the Veteran receives ongoing treatment at the South Texas Veterans Health Care System and the Brooke Army Medical Center. Currently the record includes treatment records from the South Texas Veterans Health Care System through June 2013 (see Veterans Benefits Management System electronic file) and treatment records from Brooke Army Medical Center dated through January 2010 (see paper claims file). An attempt should be made to obtain any outstanding treatment records. During the March 2013 Board hearing, the Veteran testified that he was no longer able to work, at least in part, due to his service-connected bilateral knee disabilities. He also submitted a July 2012 statement from his former employer, which indicates that he retired early due to his back and knee disabilities. The United States Court of Appeals for Veterans Claims (Court) has held that a claim for a TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits but is instead part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, when entitlement to a TDIU is raised during the appeal of a rating for a disability, it is part of the claim for benefits for the underlying disability. Id. at 453-54. However, this issue is not yet ripe for review and must be remanded for additional development. See VAOPGCPREC 6-96 (noting that because the Board has jurisdiction over the question of TDIU for a particular disability in connection with a claim for an increased rating, the proper method of returning the case to the RO for further action is by Remand). The Veteran has not submitted a formal application for a TDIU and has not been provided with VCAA notice appropriate for his claim for entitlement to a TDIU. Such should be remedied on remand. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran complete a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). 2. Issue the Veteran notice consistent with the Veterans Claims Assistance Act of 2000 (VCAA) for his claim of entitlement to a TDIU. 3. Ask the Veteran to identify the provider(s) of any additional treatment or evaluation he has received for his service-connected right and left knee disabilities, records of which are not already associated with the claims file, and to provide any releases necessary for VA to secure records of such treatment or evaluation, to include records from the Brooke Army Medical Center since January 2010. Complete clinical records of all such treatment and evaluation from the sources identified by the Veteran must be obtained for the record. If any records are unavailable, the reason for their unavailability must be explained for the record. 4. Obtain relevant treatment records from the South Texas Veterans Healthcare System dating since June 2013. 5. After the above has been accomplished to the extent possible, schedule the Veteran for a VA joints examination to determine the extent of his bilateral knee disabilities. 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 should provide ranges of motion for the service-connected right and left knee disabilities. It is important that the examiner specifically state whether there is any additional limitation of function due to or caused by fatigue, pain, weakness, lack of endurance or incoordination. The examiner should provide an opinion as to impact of the Veteran's service-connected right and left knee disabilities on his ability to obtain or maintain gainful employment. 6. After the above has been accomplished to the extent possible, obtain an opinion from a vocational rehabilitation specialist or appropriate VA physician to assess the impact with respect to all of the Veteran's service-connected disabilities on his ability to obtain and maintain employment. The specialist must review the record in its entirety and must comment on the effect of the Veteran's service-connected disabilities on his ability to work (disregarding the effects of any disabilities that are not service-connected), indicating what functions/types of employment would be inconsistent with/precluded, and what types of employment, if any, would remain feasible despite the service-connected disabilities. The specialist should set forth all findings, together with the complete rationale for the comments and opinions expressed. 7. After completing these actions, the AOJ should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. 8. After the development requested above has been completed to the extent possible, the record should again be reviewed and the claims (including the claim for a TDIU) should be readjudicated. If any benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). The claims must be afforded expeditious treatment. The law requires that all claims remanded by the Board 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). _________________________________________________ N. KROES Acting 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 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).