Citation Nr: 1331278 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 10-08 806 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to an increased rating for internal derangement of the right knee, postoperative, currently evaluated as 20 percent disabling. 2. Entitlement to an increased rating for degenerative joint disease (DJD) of the right knee, associated with internal derangement of the right knee, rated as 10 percent disabling from August 22, 2008, and 30 percent disabling from March 22, 2012. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from March 1985 to March 1988. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Wichita, Kansas, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied a claim for an increased rating for the service-connected right knee disorder. In December 2011, the Board remanded the claim for additional development. In August 2012, the Appeals Management Center (AMC) granted a separate rating for DJD of the right knee associated with internal derangement, as listed on the title page of this decision. A 10 percent rating was assigned from August 22, 2008, and a 30 percent rating was assigned from March 22, 2012. A 20 percent rating for internal derangement of the right knee remained in effect. The Veteran continues to assert that increased ratings are warranted. 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 Further development is necessary prior to adjudicating these increased-rating claims for the right knee disabilities. In April 2012, the Veteran underwent a VA compensation examination assessing the severity of his right knee disabilities. As a result of that evaluation, as discussed above, a separate right knee rating was established for DJD. In a May 2013 brief, the Veteran's representative stated that the April 2012 examination was conducted shortly after the Veteran received annual gel injections in his right knee. The representative argued that his range of motion (ROM) results were therefore greatly improved, and were not representative of his full disability picture. The representative requested that a contemporaneous examination be conducted to determine the current severity of the Veteran's right knee disorders. Under the circumstances, the Board finds that the Veteran needs to be reexamined to reassess the severity of his service-connected right knee disabilities. See Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence adequately addressing the level of impairment of the disability since the previous examination); Ardison v. Brown, 6 Vet. App. 405, 407 (1994). With regard to the claim for TDIU, documents have recently been added to the claims file which indicate that the Veteran is no longer employable as a police officer as a result of psychiatric symptoms. In May 2013, the Veteran's representative argued that the claimant's right knee condition also makes him unemployable. Thus, the issue of entitlement to a TDIU has been raised by the record. In Rice v. Shinseki, 22 Vet. App. 447 (2009) (per curiam) the Court stated that when the issue of entitlement to a TDIU rating for a particular service-connected disability or disabilities is raised in connection with a claim for an increased rating for such disability or disabilities, the Board has jurisdiction to consider that issue. The Court indicated that if the Board determines that further action by the RO is necessary with respect to the issue, the Board should remand that issue. In this case, the Veteran has not yet been afforded VCAA notice with regard to his TDIU claim. In addition, the Veteran's increased rating claims for his right knee are being remanded for additional development, to include an attempt to obtain medical evidence, and an examination, and the claim for TDIU is considered to be "inextricably intertwined" with the claims for an increased rating. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Finally, a review of the claims file shows that an opinion has not yet been obtained as to whether or not the Veteran is employable due to his service-connected disabilities (which consists of right knee, left knee, lumbar spine, right hip, and psychiatric disabilities, and hemorrhoids). See Friscia v. Brown, 7 Vet. App. 294 (1995); Gary v. Brown, 7 Vet. App. 229 (1994). Accordingly, on Remand, an opinion should be obtained which discusses the effects of his service-connected disabilities on his ability to work. Id. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a Veterans Claims Assistance Act (VCAA) notice letter apprising him of the type of evidence and information needed to substantiate his derivative claim for a TDIU, including apprising him of his and VA's respective responsibilities in obtaining this supporting evidence. 2. Ask the Veteran whether he has received any treatment for his service-connected right knee (or any other service-connected) disabilities since April 2012. If he has, and the records are not already in the file, then obtain them with his cooperation. If attempts to obtain any additionally identified records are unsuccessful, and it is determined that further attempts to obtain them would be futile, then make an express declaration to this effect and notify him of this in accordance with 38 C.F.R. § 3.159(c) and (e) (2013). 3. After the development outlined in the first two paragraphs of this remand has been completed, schedule an appropriate VA compensation examination to reassess the severity of the service-connected right knee disabilities. The claims file must be made available to and thoroughly reviewed by the examiner in connection with the examination, and the examiner must indicate that the claims file has been reviewed in association with the examination. Provide the examiner with a list of the Veteran's service-connected disabilities. The examiner is asked to specifically address the following: a. Identify and describe all symptoms and manifestations attributable to the service-connected chronic right knee internal derangement and associated DJD. All necessary diagnostic testing and evaluation should be performed, including testing of the range of motion of the right knee on extension and flexion. b. Indicate whether there is recurrent subluxation or lateral instability of the right knee and, if so, whether it is slight, moderate, or severe. c. Determine whether the right knee exhibits pain or painful motion, weakened movement, premature or excess fatigability, or incoordination; and, if feasible, these determinations should be expressed in terms of the degree of additional functional loss, including in terms of what effect, if any, this has on the range of motion of the knee, including during times when these symptoms are most problematic ("flare ups") or during prolonged, repetitive, use of the knee. d. Provide an opinion concerning the impact of the service-connected disabilities on the Veteran's ability to work at any occupation (i.e., manual and/or sedentary type), given his level of education, prior work experience and training, but not any impact on account of his age or disabilities that are not service-connected. At the discretion of the examiner, if deemed necessary, a separate VA psychiatric examination may also be scheduled and conducted regarding the impact that the Veteran's PTSD has on his ability to gainfully employed. It is imperative the examiner discuss the rationale of the opinions in response to these questions, whether favorable or unfavorable, if necessary citing to specific evidence in the file. 4. The RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the report of examination. If the requested report does not include fully detailed descriptions of pathology and all test reports, specific studies or adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2013); see also Stegall v. West, 11 Vet. App. 268 (1998). 5. Thereafter, readjudicate the issues on appeal, to include the claim of entitlement to TDIU. If any of the determinations remains unfavorable to the appellant, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim(s) for benefits, to include a summary of the evidence and applicable law and regulations considered. The appellant should be given an opportunity to respond to the SSOC. Note: The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 38 C.F.R. § 3.655 (2013). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant or the death of an immediate family member. If the Veteran fails to report to the scheduled examination, the AMC/RO should obtain and associated with the claims file a copy or copies of the notice or notices of examination sent to the appellant by the appropriate VA medical facility. 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). _________________________________________________ T. STEPHEN ECKERMAN Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002 & Supp. 2012), 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).