Citation Nr: 1336363 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 07-27 736 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an evaluation higher than 20 percent for patellofemoral syndrome of the left knee. 2. Entitlement to an evaluation higher than 10 percent for patellofemoral syndrome of the right knee. 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 Nadine W. Benjamin, Counsel INTRODUCTION The Veteran had active service from January 10 to October 18, 1994. This matter arises before the Board of Veterans' Appeals (Board) from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In February 2010, the Veteran testified at a Travel Board hearing in front of the undersigned. The transcript of the hearing has been reviewed and is associated with the claims file. In April 2010 and again in July 2011, this case was remanded for additional development. The case has been returned to the Board and is ready for further review. 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 seeks increased evaluations for his service-connected bilateral knee disorder and also a TDIU. The Veteran has indicated that he has problems with his knees everyday that interferes with his personal life. (See, hearing testimony). The Board notes that the Veteran was last examined in June 2010, over three years ago. VA outpatient records show that thereafter, he complained of increasing knee pain, his medication was changed to Tramadol and he was to be considered for injections. (See, VA outpatient record of July 2010) In September 2010 he was given Synvisc injections. Under the circumstances, the Board finds that the Veteran needs to be reexamined to reassess the severity of his service-connected 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). Given the evidence reflecting a potential increased severity of bilateral knee disability since the June 2010 VA examination, the Board finds that more contemporaneous medical findings are needed to evaluate the Veteran's service-connected bilateral knee disability. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. See also Green, 1 Vet. App. at 124; Caffrey, 6 Vet. App. 377, 381 (1994). Additionally, the Board may not reject a TDIU claim without producing evidence, as distinguished from mere conjecture, that the Veteran's disability does not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). In Friscia, the United States Court of Appeals for Veterans Claims (Court) specifically stated that VA has a duty to supplement the record by obtaining an examination which includes an opinion on what effect the appellant's service-connected disability has on his ability to work. Friscia, at 297, citing 38 U.S.C.A. § 5107(a)(West 2002); 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.16(a) (2010); Beaty, 6 Vet. App. at 538; and Obert v. Brown, 5 Vet. App. 30, 33 (1993). The Veteran was last examined by VA in 2010. At that time the examiner indicated that the Veteran's disabilities had significant effects on his occupation. However an opinion regarding employability was not provided. Given the length of time since the last VA examination and the Boards findings that another examination should be conducted and that a new VA examination is warranted which includes discussion of the employability of the Veteran. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). In order to determine the current manifestations of the Veteran's service-connected disabilities, a remand for an examination and opinion is required. Accordingly, the case is REMANDED for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. After completing the above, schedule the Veteran for a VA examination to determine the severity of his bilateral knee disability. The claims file and any pertinent evidence in Virtual VA must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be made available to the examiner for review. Such review must be documented in the examination report. Any indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings should be reported in detail. a) The examiner must conduct any appropriate interviews and clinical testing to respond to the inquiries, including x-rays of the Veteran's joints. b) The examiner must report the complete range of motion for the bilateral knees. In reporting the results of range of motion testing, the examiner must identify any objective evidence of pain and the specific limitation(s) of motion, if any, accompanied by pain. To the extent possible, the examiner must assess the degree of severity of any pain. The examiner should also discuss any evidence of instability or locking of the bilateral knees. c) Tests of joint movement against varying resistance must be performed. The extent of any incoordination, weakened movement, and excess fatigability on use must also be described by the examiner. The examiner must assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. d) The examiner must also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups), and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. e) The examiner must also provide an opinion concerning the impact of the Veteran's bilateral knee disabilities on his ability to work to include whether the Veteran is unemployable because of his service-connected disabilities, alone or acting together. In doing so, the examiner must also elicit from the Veteran and the record for clinical purposes, a full work and educational history. f) The examiner is requested to provide a fully reasoned explanation for his or her opinions, based on his or her clinical experience, medical expertise, and established medical principles. If any requested opinion cannot be made without resort to mere speculation, this must also be fully explained. 3. The RO must notify the Veteran that it is his responsibility to report for the examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for the aforementioned examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. After the development requested has been completed, the RO must review the examination report to ensure that it is in complete compliance with the directives of this Remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 8. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claims must be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review, if otherwise in order. 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). _________________________________________________ L. M. BARNARD 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).