Citation Nr: 1333812 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 07-38 590 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 30 percent for the Veteran's status post left total knee arthroplasty (left knee disorder). 2. Entitlement to a total rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran had active service from September 1961 to September 1965. This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 2006 decision by the Department of Veterans Affairs (VA) St. Petersburg, Florida Regional Office (RO). In October 2011, the Board remanded the appeal to provide the Veteran with the hearing he had requested before a Veterans' Law Judge traveling to the RO. In October 2012, the Veteran withdrew this hearing request. In its October 2013 Brief, the Veteran's representative claimed that his service-connected left knee disorder prevented him from working. Therefore, the Board finds that the record raises a claim for a TDIU, so it is included as an issue on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (per curiam) (holding that claims for higher evaluations also include a claim for a total rating based on TDIU when the appellant claims he is unable to work due to a service connected disability). 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 In the October 2013 Brief, the Veteran's representative indicated that the Veteran's left knee disorder has become worse since the claimant's last VA examination in October 2006. As such, VA is required to afford the Veteran a contemporaneous VA examination to assess the current nature, extent, and severity of his left knee disorder. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). The record also shows that there could be records of relevant treatment at the Tampa, Gainesville, and Lake City VA facilities, as well as a private facility, (Orthopedic Association of St. Augustine). Updated records from these facilities should be sought. Lastly, the Veteran should be provided with notice of the laws and regulations governing a TDIU. Under these circumstances, this appeal is REMANDED to the RO/AMC for the following actions: 1. The RO/AMC shall obtain and physically or electronically associate with the claims file all of the Veteran's left knee treatment records from the Tampa VA Medical Center as well as his post-September 2007 treatment records from the Gainesville, and Lake City VA facilities. All actions to obtain the requested records should be documented fully in the claims file. 2. After obtaining an authorization from the Veteran, the RO/AMC shall obtain and physically or electronically associate with the claims file all of his post-November 2006 treatment records from the Orthopedic Association of St. Augustine. All actions to obtain the requested records should be documented fully in the claims file. 3. The RO/AMC shall provide the Veteran with notice of the laws and regulations governing a TDIU. 4. After undertaking the above development to the extent possible, the RO/AMC should schedule the Veteran for an examination to determine the current severity of his left knee disorder as well as whether it precludes substantially gainful employment. The claims file should be provided to the examiner in connection with the examination. All indicated tests and studies deemed appropriate by the examiner should be accomplished and all clinical findings should be reported in detail. The examination report should include opinions as to the flowing: a. Does the Veteran's left knee have severe painful motion or weakness? b. Not taking into account any impairment from age or non-service connected disability, is it at least as likely as not that the Veteran's service connected left knee disability prevents him from engaging in substantially gainful employment. A complete rationale with citation to relevant evidence found in the claims file should be provided for the opinions. If the examiner cannot provide either of the requested opinions, the reasons for that should be explained, e.g., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed such as additional records and/or diagnostic studies. 5. The RO/AMC should thereafter adjudicate the claims, including consideration of whether the criteria for referral of the claim to the Director, Compensation and Pension for an extra-schedular rating have been met. If any benefit sought on appeal is denied, the RO/AMC shall issue a supplemental statement of the case to the Veteran that includes notice of all the relevant laws and regulations. After providing an opportunity to respond, return the case to the Board. 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 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). _________________________________________________ MICHAEL E. KILCOYNE 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).