Citation Nr: 1335386 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 10-44 090A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for limitation of flexion of the right knee. 2. Entitlement to an evaluation in excess of 20 percent for degenerative joint disease of the right knee with limitation of extension. 3. Entitlement to an initial evaluation in excess of 20 percent for instability of the right knee. 4. Entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from October 1966 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2010 rating decision of the Columbia, South Carolina, regional office (RO) of the Department of Veterans Affairs (VA). This decision increased the evaluation for limitation of extension of the right knee to 20 percent effective from the date of the Veteran's claim; decreased the evaluation for limitation of flexion of the right knee from 20 percent to zero percent; and established service connection for instability of right knee with an evaluation of 10 percent. The 20 percent evaluation for limitation of flexion of the right knee was restored by a March 2010 rating decision. The Veteran had originally requested an evaluation in excess of 20 percent in his claim, and has not expressed satisfaction with this restoration. Similarly, although a May 2011 rating decision increased the initial evaluation for the Veteran's right knee instability to 20 percent effective from the date of the claim, he has not indicated his satisfaction. As both of these evaluations are less than the maximum evaluation that is available, they remain on appeal. AB v. Brown, 6 Vet. App. 35 (1993). The Veteran offered testimony at an April 2012 hearing at the RO before the undersigned acting Veterans Law Judge. A transcript of this hearing is in the claims folder. The Board notes that it has assumed jurisdiction of the claim for TDIU because such claim has been raised by the record and by the Veteran at the April 2012 hearing. This is reflected on the first page of this decision. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran contends that the evaluations assigned to his right knee disabilities are all inadequate to reflect the impairment they produce. In fact, the Veteran argues that his right knee disability renders him unemployable. At the April 2012 hearing, the Veteran testified that he is in receipt of benefits from the Social Security Administration (SSA). The Veteran stated that he had previously been denied SSA disability benefits, but that he was now in receipt of benefits. It is not entirely clear as to whether or not the current payments are SSA disability benefits or retirement benefits. The record shows that SSA records were previously obtained in conjunction with an earlier claim in December 2008. To ensure that the record is complete, the Board finds that an additional request for records received after December 2008 should be made of SSA. The Veteran also testified that his right knee disability had increased in severity since his most recent VA examination. The Veteran is entitled to a new VA examination where there is evidence (including his statements) that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). In view of the Veteran's testimony, the Board finds that the Veteran must be scheduled for a new VA examination of his right knee. Finally, the Veteran testified that his right knee disability prevents him from maintaining gainful employment. As noted above, the Board has assumed jurisdiction of the claim for TDIU. Therefore, the VA examination that is to be scheduled must also address whether or not his service connected disabilities render him unemployable. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a letter and ask that he identify all sources of treatment for his right knee since September 2009. After obtaining any necessary permission, obtain these records and associate them with the claims folder. This should include at a minimum any VA treatment records not previously obtained regarding treatment of his service connected disabilities. 2. Contact SSA and request a copy of any decision pertaining to the Veteran dated subsequent to December 2008, as well as any medical records obtained subsequent to December 2008 used to reach a decision. If a negative reply is received, this should be documented in the claims folder. 3. Schedule the Veteran for a VA examination of his right knee disabilities. The claims folder must be made available to the examiner, and the examination report must indicate that it has been reviewed. All indicated tests and studies should be conducted. The range of motion of the knee should be recorded in degrees with a goniometer. The examiner must also note any additional limitation due to pain, weakness, instability, or excess fatigability due to repetitive motion, and any additional loss of range of motion due to these factors should be identified. Any flare-ups should be noted, and additional functional limitation during flare-ups should be described to the extent possible. After the completion of the examination and review of the record, the examiner should attempt to express the following opinion: a) Is it as likely as not that the Veteran's service connected disabilities combine to render the Veteran incapable of obtaining and maintaining gainful employment consistent with his age, experience and education? The reasons and bases for all opinions should be provided. If the examiner finds that he is unable to provide any portion of the requested opinion without resort to speculation, the reasons and bases for this opinion should be noted, and any missing evidence that might enable the opinion to be provided should be identified to the extent possible. 4. After the development requested above has been completed to the extent possible, the RO should again review the record. This should include adjudication of the claim for TDIU. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the Veteran and 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 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). _________________________________________________ THOMAS H. O'SHAY Acting 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) (2013).