Citation Nr: 1333493 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 10-37 008 ) 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 residuals of right knee medial and lateral meniscectomies, currently evaluated as 20 percent disabling. 2. Entitlement to an increased rating for left knee strain with mild degenerative joint disease, currently evaluated as 10 percent disabling. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Chris Miller, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1967 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision, with January 2010 notice to the Veteran, issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied the Veteran's increased rating claims. The Veteran moved to Kansas in 2011, and original jurisdiction over his claim was subsequently transferred to the Wichita, Kansas RO. The Veteran requested and was scheduled for a hearing before the Board in February 2012. However, as he failed to appear and has not requested that the hearing be rescheduled, his hearing request is considered to have been withdrawn. See 38 C.F.R. § 20.704(d) (2013). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. The documents in this virtual file were reviewed in conjunction with this appeal. The Veteran's file contains a statement dated November 2012, wherein he states that he wishes to add a TDIU claim. The issue of entitlement to a TDIU is therefore under the Board's jurisdiction. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). However, the RO has not developed or adjudicated the issue of entitlement to a TDIU. The issues of an increased rating for ischemic heart disease and secondary service connection for both hypertension and antalgic gait with loss of propulsion have been raised by the Veteran's April 2013 Informal Hearing Presentation, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 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 A. The Veteran's Knee Disabilities A review of the claims file reveals that further development on the matters of entitlement to increased disability ratings for the Veteran's right and left knee disabilities, currently rated at 20 percent and 10 percent, respectively. The Veteran filed the instant claim in July 2009. The Veteran had a VA examination in April 2010. In November 2012, the Veteran submitted a statement wherein he stated that he should have a higher disability rating for his knees. The Board will construe this as a statement that his knee disability has gotten worse. This statement, along with the fact that the Veteran's last knee examination was over three years ago and there is no medical evidence since that time, warrants a new VA examination to determine the current level of the Veteran's disabilities. See Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity). The Veteran's claims file documents that he has been entitled to disability benefits from the Social Security Administration (SSA) for his knees beginning in May 2010. However, it does not appear that records from that claim are associated with his file. Given that his Social Security disability reward and the instant VA claim both involve his knees, the Veteran's Social Security disability records are clearly relevant and need to be associated with the Veteran's claims file. The Board also notes that the most recent VA treatment records in the Veteran's claims file are from December 2010. Any such records that are outstanding need to be obtained. Finally, the Board notes that the Veteran's right knee disability has been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5257 (these codes rate traumatic arthritis and instability, respectively). And, indeed, evidence of record suggests that, during the course of the appeal, both degenerative changes and instability have been shown on examination of the right knee. The Board notes that separate evaluations for arthritis and instability have not been considered by the RO. See VAOPGCPREC 23-97; 62 Fed. Reg. 63604 (1997) (arthritis and instability of the knee may be rated separately provided that any separate rating is based upon additional disability); VAOPGCPREC 9-98; 63 Fed. Reg. 56704 (1998) (if a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59 ). On remand, the RO/AMC should consider separate evaluations for arthritis and instability for both knees. As well, separate evaluations for limitation of knee extension and flexion should be considered. See VAOPGCPREC 9-04; 69 Fed. Reg. 59990 (2005) (holding that where a knee disability manifests both limitation of flexion and limitation of extension, VA is to provide two separate ratings under Diagnostic Codes 5260 and 5261). B. TDIU As noted above, the Veteran has submitted a statement wherein he states that he wishes to add a TDIU claim. A TDIU may be granted where the schedular rating is less than 100 percent if the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, the following percentage thresholds must be met: if there is only one service-connected disability, it shall be ratable at 60 percent or more; if there are two or more service-connected disabilities, there must be at least one disability rated at 40 percent or more and sufficient additional disabilities to bring the combined overall rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Currently, the Veteran has service connected post traumatic stress disorder, rated at 50 percent; a right knee disability, rated at 20 percent; a left knee disability, rated at 10 percent; and ischemic heart disease, rated at 10 percent. The combined rating for these disabilities is 70 percent. The Veteran also has service connected prostate cancer, currently rated at 100 percent. He accordingly receives special monthly compensation (SMC) under 38 U.S.C.A. § 1114(s) (West 2002 & Supp. 2013) and 38 C.F.R. § 3.350(i). However, the Veteran's prostate cancer disability rating is not permanent, and is subject to future review evaluations. See July 2011 rating decision. Therefore, the Veteran's TDIU claim is not moot inasmuch as a reduced prostate cancer rating would end his eligibility for SMC. See 38 U.S.C.A. § 1114(s) (awarding SMC if a veteran has a service-connected disability rated as total, and has additional service-connected disability or disabilities independently ratable at 60 percent or more). Upon remand, the Veteran should be provided with proper notice as to the elements and information necessary to substantiate his claim for a TDIU. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.340, 3.341, 4.16. After development upon remand, the RO should adjudicate his TDIU claim in the first instance. Accordingly, the case is REMANDED to the AMC for the following action: 1. Send the Veteran and his representative a notice letter that explains how to establish entitlement to a TDIU. Afford the Veteran the opportunity to submit additional evidence or argument in furtherance of his claims. Associate any records or responses received with the claims file, and undertake any reasonable indicated development. 2. Contact the SSA and obtain a copy of that agency's decision concerning the Veteran's claim for disability benefits, including any medical records used to make the decision. 3. Obtain any outstanding pertinent VA treatment records from December 2010 forward. 4. All efforts to obtain federal records must be documented in the claims file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. If any records cannot be obtained after appropriate efforts have been expended, the Veteran should be notified and allowed an opportunity to provide such records. 5. After the above actions, arrange for the Veteran to undergo a VA examination to determine the current severity of his service-connected left and right knee disabilities. The entire claims file, including a copy of this remand, must be made available to the examiner for review in conjunction with the examination, and the examiner should acknowledge such review in the examination report. All appropriate tests and studies, including, as appropriate, X-rays and range of motion studies, should be conducted, and all clinical findings should be reported in detail. The examiner should note the ranges of motion for the left and right knees and whether any anklosis is present. Whether there is any pain, weakened movement, excess fatigability or incoordination on movement should be noted, and whether there is likely to be additional range of motion loss due to any of the following should be addressed: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner is asked to describe whether pain significantly limits functional ability during flare-ups or when the left or the right knee is used repeatedly. All limitation of function must be identified. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. In addition, the orthopedic examiner should note whether the Veteran has any instability or recurrent subluxation of either knee. 6. Take appropriate action to develop and adjudicate the Veteran's claim for a TDIU, to include, if deemed necessary, a VA examination to address the question of whether the Veteran's knee disabilities, alone or together with his other service-connected disabilities, render him unable to secure and maintain substantially gainful employment. 7. When the development requested has been completed, the case should be reviewed on the basis of additional evidence. Regarding the knee disabilities, the AMC should consider separate evaluations for arthritis and instability, and for limitation of extension and flexion (see above). The Veteran and his representative should then be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the case is returned to the Board for further review. No action is required of the Veteran until she is notified by the RO/AMC; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of her claim. 38 C.F.R. § 3.655. 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 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. _________________________________________________ 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 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).