Citation Nr: 1331337 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 08-13 746 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a left knee disorder, to include as secondary to service-connected disabilities. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Patrick R. Kelly, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. M. Gillett, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to June 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In a September 2007 rating decision, the RO, in pertinent part, denied entitlement to a TDIU. The Veteran appealed that issue to the Board. In a July 2009 rating decision, the RO, in pertinent part, denied service connection for a left knee disorder. In July 2010, after the certification of the appeal to the Board of the issue of entitlement to a TDIU, the Veteran filed a letter, indicating his disagreement with the RO's July 2009 denial of his claim for service connection for a left knee disorder. In a July 2010 Remand, the Board determined that the July 2010 letter submitted by the Veteran was a timely Notice of Disagreement (NOD) and remanded the claim for service connection for a left knee disorder to the RO for the issuance of a Statement of the Case (SOC). As the issue of entitlement to a TDIU was inextricably intertwined with the issue of service connection for a left knee disorder, the Board remanded that issue as well. The RO subsequently issued an August 2010 SOC and, in September 2010, the Veteran filed a substantive appeal to the Board. The RO then recertified both issues to the Board. In March 2013, the Veteran testified at a hearing before the undersigned Veterans Law Judge, seated at the RO (Travel Board hearing). A copy of the transcript has been associated with the claims file. During the pendency of this appeal, the Veteran filed a claim for service connection for bilateral hearing loss and the RO denied the claim in an October 2010 rating decision. In May 2011, the Veteran appealed the decision, denying service connection for bilateral hearing loss, to the Board. Yet, prior to the certification of the appeal of that issue to the Board, the RO granted service connection for bilateral hearing loss in a November 2011 rating decision. As the November 2011 rating decision fully granted that claim, service connection for bilateral hearing loss is not in appellate status and is not before the Board. 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 The Veteran essentially contends that he is unable to work due to his service-connected disabilities. In his May 2008 Substantive Appeal to the Board, the Veteran wrote that three different government agencies, specifically the Social Security Administration (SSA), the Office of Personnel Management (OPM), and the United States Postal Service (USPS), had found him to be disabled due to service-related injuries. The claims file contains records procured from SSA, including an administrative decision awarding the Veteran Social Security Disability benefits and the treatment records referred to in that decision. The record of evidence also includes an April 2007 form completed by the Veteran's USPS supervisor in support of the Veteran's claim for Federal disability retirement benefits, stating that the Veteran was too disabled to work. In addition, the record contains a September 2007 letter from OPM, advising the Veteran that he had been awarded Federal disability retirement benefits, but failing to list a reason for that award. The record contains no indication that the RO contacted OPM to secure the complete records reviewed and created by OPM in granting the Veteran's claim for Federal disability retirement benefits. Therefore, the complete set of records regarding the Veteran's claim for Federal disability retirement benefits must be procured for the claims file. The Veteran contends that he has a left knee disorder which was caused or aggravated by service-connected disabilities, to include his service-connected right knee disability and residuals of shrapnel injuries to the left leg at Muscle Group XII. In a June 2009 VA medical examination report, a VA examiner opined that it was less likely than not that the Veteran's left knee disorder, diagnosed as osteoarthritis, was related to service, to include the in-service shrapnel injury. Yet, the VA examiner did not offer a clear explanation as to whether the claimed left knee disorder was either caused or aggravated by the Veteran's other service-connected disabilities. Therefore, an additional examination should be provided to determine the nature and etiology of the Veteran's left knee disorder. Regarding the claim for entitlement to a TDIU, a VA examiner should also examine the Veteran and determine whether the Veteran's service-connected disabilities, alone or together, cause the Veteran to be incapable of procuring or maintaining substantially gainful employment. Accordingly, the case is REMANDED for the following action: 1. Secure for association with the claims file any copies of the Federal disability retirement records, by contacting OPM. If such records are unavailable or do not exist, the RO must obtain certification from OPM stating such is the case (and the Veteran should be so advised). 2. Thereafter, schedule the Veteran for a VA joints examination to determine the nature and etiology of the Veteran's claimed left knee disorder. All indicated tests and studies should be performed. Prior to the examination, the claims folder should be made available to and reviewed by the VA examiner. Having interviewed the Veteran, performed an examination, and reviewed the claims file, the VA examiner should offer the following opinions: a. Is it at least as likely as not (50 percent or greater likelihood) that any diagnosed left knee disorder, to include osteoarthritis, had its clinical onset during active service or is related to any incident of service, to include in-service shrapnel injuries. b. Is it at least as likely as not (50 percent or greater probability) that any diagnosed left knee disorder, to include osteoarthritis, was caused or aggravated by the Veteran's service-connected disabilities, to include the right knee disability and the left calf disability (shrapnel wound to Muscle Group XII)? The VA examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as it is to find against causation. The VA examiner is further advised that aggravation is defined for legal purposes as a permanent worsening of the underlying condition beyond its natural progression, versus a temporary flare-up of symptoms. If the VA examiner determines a disorder was aggravated, although not caused, by a service-connected disability, he or she should indicate the degree of such aggravation over and the above the natural course of the disorder. A rationale should be provided for any opinion or conclusion expressed. If the VA examiner is unable to provide the requested opinion with what is considered to be a generally accepted degree of medical certainty, i.e., without resorting to speculation, the reasons should be so stated. The VA examiner should in such case explain why it would be speculative to respond. 3. Subsequent to the provision of the VA joints examination, the RO should also schedule the Veteran for a VA general examination(s) of all his service-connected disabilities (currently right knee disability; tinnitus; bilateral hearing loss; shell fragment wounds of the left leg with damage to Muscle Group XII, left forearm with injury to Muscle Group VII, and right leg with injury to Muscle Group XI; and scars from shell fragment wounds of the right knee, left arm, and left leg). The examiner should note any functional impairment caused by the Veteran's disabilities, including a full description of the effects of his disability upon his ordinary activities, if any. The VA examiner is asked to render an opinion as to whether it is at least as likely as not (fifty percent or greater) that the Veteran's service connected disabilities alone, without regard to the Veteran's age or any non-service connected health problems, render the Veteran unable to find and maintain substantially gainful employment. The examiner is asked to provide a rationale for his or her opinion. The Veteran's claim folder, to include a copy of the VA joints examination required by this remand, and a copy of this Remand should be furnished to the examiner, who should indicate in the examination report that he or she has reviewed the claims file. A rationale should be provided for any opinion or conclusion expressed. If the VA examiner is unable to provide the requested opinion with what is considered to be a generally accepted degree of medical certainty, i.e., without resorting to speculation, the reasons should be so stated. The VA examiner should in such case explain why it would be speculative to respond. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the 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 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). _________________________________________________ JOHN Z. JONES 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).