Citation Nr: 1328653 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 10-06 448 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUES 1. Entitlement to an increased disability rating for limitation of extension due to degenerative joint disease of the left hip, rated as 10 percent disabling. 2. Entitlement to an initial increased disability rating for patellar tendonitis of the right knee, rated as noncompensably disabling from June 16, 2009, and as 40 percent disabling from February 29, 2012. 3. Entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from February 1970 to June 1970, when he was discharged on account of physical disability involving his left knee. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 RO decision which in pertinent part granted service connection for patellar tendonitis of the right knee, and denied a disability rating greater than 10 percent for limitation of extension due to degenerative joint disease of the left hip. Subsequently, in an August 2012 decision, the RO increased the disability rating assigned to the Veteran's right knee to 40 percent, effective in February 2012, the date of the VA examination report upon which the increase is based. In August 2012, the RO also assigned a separate disability rating of 0 percent for limitation of flexion due to degenerative joint disease of the left hip and assigned a 0 percent disability rating for a surgical scar on the left knee. The Veteran has not disagreed with either the disability ratings or the effective dates assigned for these disabilities. We note that he was informed in a September 2012 letter that he had one year in which to file such a disagreement. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action on his part is required. REMAND Left hip Service connection for limitation of extension of the left hip due to degenerative joint disease under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5251, has been in effect since 1997. The Veteran filed the instant claim for an increase in June 2009. When a claim for an increased rating is granted, the effective date assigned may be up to one year prior to the date that the application for increase was received if it is factually ascertainable that an increase in disability had occurred within that timeframe. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. Hart v. Mansfield, 21 Vet. App. 505 (2007). Therefore, in reviewing the pertinent medical evidence in support of an increased rating claim, adjudicators have a responsibility to consider all evidence reflecting the Veteran's condition during the year prior to the claim. In this case, this period of time encompasses the timeframe from June 2008 until the present. The Veteran has specified that he receives medical care only through the VA. VA medical records are deemed to be constructively of record in proceedings before the VA. Bell v. Derwinski, 2 Vet. App. 611 (1992). Careful review of the evidence available for review in the Veteran's claims file, however, reveals that no records dated between June 2008 and May 2009 have been obtained for review. Likewise a gap in time between June 2009 and October 2009 exists in the claims file. As the case must be remanded anyway, his recent VA treatment records should be updated for the file as well. Right knee When service connection for right knee patellar tendonitis was granted in September 2009, the noncompensable rating assigned to the disability was predicated upon right knee range of motion findings of 0 to 140 degrees under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5261. A pictorial depiction of knee motion found at 38 C.F.R. § 4.71, Plate II, indicates that 0 to 140 represents full range of knee motion. When the RO increased the disability rating to 40 percent in August 2012, it did so based upon the report of a February 2012 knee examination which showed the Veteran was unable to fully extend his right knee and could only extend the knee to 30 degrees. However, the same report indicated that painful motion began at extension to 15 degrees. Because these two findings are entirely inconsistent and incompatible with one another, the Board deems that clarification is required. We note as well, that although the voluminous treatment reports contained in the file reflect that the Veteran walks with a limp, there is no information as to his exact range of right knee motion in these reports. TDIU The evidence reflects that the Veteran has been unemployed for several years. In a March 2010 communication, he asserted that the VA should consider his functional impairment, "as it relates to ability to provide for myself as well as my family." In May 2012, he filed a formal application for unemployability benefits, which the RO interpreted as a claim for nonservice-connected pension benefits. (Pension benefits were indeed granted in June 2012.) However, careful review of the application reflects that he claimed that his bilateral knee disabilities and his left hip disability prevented him from working. As he is service-connected for all of these disabilities, the claim based upon unemployability is more reasonably interpreted as a claim for compensation benefits based upon TDIU. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part and parcel of an increased-rating claim when raised by the record. The Board has jurisdiction to consider the Veteran's possible entitlement to a TDIU rating in this circumstance when the TDIU issue is raised by assertion or reasonably indicated by the evidence and is predicated at least in part on the severity of the service-connected disability in question, regardless of whether the RO has expressly addressed this additional issue. See VAOPGCPREC 6- 96 (Aug. 16, 1996). See also Caffrey v. Brown, 6 Vet. App. 377, 382 (1994). The Board finds that TDIU is explicitly raised by the evidence of record, in the Veteran's March 2010 filing and in his May 2012 application for benefits predicated upon unemployability. Thus, in light of the Court's decision in Rice, the VA must adjudicate that issue as part of the increased rating claims at issue here. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain all records of VA medical treatment afforded to the Veteran from June 2008 to May 2009, From June 2009 to October 2009, and from August 2012 to the present, at the VA Medical Centers in Houston, Texas and Providence, Rhode Island, and the Beaumont Texas VA Outpatient Clinic, and all related VA facilities in both Texas and Rhode Island, for inclusion in the file. 2. AFTER the above records have been associated with the claims file, the veteran should be afforded a VA orthopedic examination to identify all impairment related to the Veteran's service-connected right knee patellar tendonitis, to include limitation of motion. The claims folder, including all electronic medical records, must be made available to the examiner for review before the examination. The clinical examination must include detailed range of motion studies, as well as all other tests and studies deemed helpful by the examiner. The examiner is requested to review the pertinent medical evidence of record and comment upon the divergent findings reported above. If possible to reconcile the finding of knee extension limited to 30 degrees but with painful range of motion at 15 degrees, the examiner should do so, otherwise the examiner should provide additional explanation as to the significance of this error. A detailed opinion as to all functional impairment resulting from the Veteran's right knee patellar tendonitis should be provided. The complete rationale for all opinions should be fully explained. 3. After the development requested above has been completed, the RO should again review the record, to include consideration of the TDIU portion of the Veteran's appeal. Any further evidentiary development should be accomplished at this point. If any benefit sought on appeal remains denied, the veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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 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). _________________________________________________ JOHN J. CROWLEY 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).