Citation Nr: 1339934 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 12-19 484 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for status post ligament repair and degenerative joint disease of the right knee. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bonnie Yoon, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1970 to October 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, which continued the 20 percent rating for status post ligament repair and degenerative joint disease of the right knee. A claim for increased evaluation includes a claim for a finding of total disability based on individual unemployability (TDIU) where there are allegations of worsening disability and related unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran has stated he is unemployed in part due to his service-connected right knee condition; a claim for TDIU is therefore considered on appeal as part and parcel of his claim for an increased evaluation. The Veteran requested a VA Central Office hearing on his July 2012 substantive appeal (VA Form 9), and the RO sent him a letter in November 2012 notifying him that a hearing was scheduled for February 4, 2013. The Veteran failed to attend his scheduled hearing and has not asserted good cause for his failure to appear or has not asked to reschedule the hearing. As such, the Board deems the hearing request withdrawn. See 38 C.F.R. § 20.704(d) (2012). The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure consideration of the totality of the evidence. In a statement dated March 2011, the Veteran stated that he had been diagnosed with osteoarthritis in both knees at the VAMC in Wichita in March 2011. Also, in his July 2012 VA Form 9, the Veteran stated that he had a lot of pain in both his knees. It appears that the Veteran is raising the issue of whether new and material evidence has been received to reopen a claim for service connection for a left knee condition. Since this claim was not developed or adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction, and therefore it is 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 Remand is required for compliance with VA's duty to assist the Veteran in substantiating his claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Social Security Records The Veteran has indicated in VA treatment records and during the August 2011 hearing that he had applied for Social Security Administration (SSA) disability benefits. A June 2011 VA treatment record notes that the Veteran stated that he was denied SSA disability but was planning to appeal the denial. Electronic records contained in Virtual VA show that the RO made an SSA inquiry around December 2011, which confirmed the denial of the Veteran's SSA claim, but no records have been obtained and associated with the claims file. SSA records almost certainly contain information regarding the Veteran's occupational capacity. VA has a duty to obtain all relevant records in the custody of a Federal agency. Such efforts must continue until the records are obtained, or until it can be certified that they are not available. 38 C.F.R. § 3.159(c) (2). As the Board cannot say that the SSA records are not relevant to issues currently on appeal, remand is required to obtain them. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). On remand, appropriate steps must be taken to obtain copies of any decision or determination with respect to the Veteran's application for SSA benefits, as well as copies of all supporting documentation. VA Examination Following the issuance of a June 2012 supplemental statement of the case (SSOC), the Veteran submitted his VA Form 9 in July 2012 where he contends that he is having problems with his range of motion and a lot of pain in his knees. He stated "It's going to go out at any time. It pops and sometimes I have to pop it back in." The Veteran also stated that it is hard for him to walk up and down stairs. The Veteran is effectively alleging that his knee has worsened since the most recent VA examination in May 2012. Based upon this evidence, a new examination is needed to determine the current severity of the Veteran's service-connected status post ligament repair and degenerative joint disease of the right knee. The Veteran is entitled to a new examination where there is evidence that the condition has worsened since the last examination, which is the case here. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Also, as stated above, the Veteran's SSA records are being requested on remand. Because these records would include the period on appeal, there is a high probability that they may provide relevant information about the Veteran's current disability, which would provide the VA examiner with a more accurate medical history. TDIU At a hearing before a Decision Review Officer (DRO) at the RO in August 2011, the Veteran stated that he has been unemployed since 2007 and that he had left his job because of his knee and also due to his boss losing his contract, raising a question of entitlement to TDIU. A finding of TDIU is dependent upon a determination of the impact of service connected disabilities on the ability obtain and retain substantially gainful employment. 38 C.F.R. §§ 3.340, 4.16. The TDIU claim is therefore inextricably intertwined with the question of the proper evaluation for the service-connected status post ligament repair and degenerative joint disease of the right knee, and adjudication of the issue must be delayed pending resolution of the evaluation question. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Moreover, as part of the already necessary VA examination, findings related to the impact of the service-connected knee disability on employment, should be obtained to assist with the adjudication of the TDIU claim. VA Treatment Records Also at the August 2011 DRO hearing, the Veteran stated that he was receiving medical treatment from the VAMC in Wichita, Kansas for various conditions, but he had not sought treatment for his right knee. However, he stated that he was planning on making an appointment for his right knee in the future. The most recent VA treatment records contained in the claims file date back to April 2012. Based on the Veteran's statement that he intends on seeking treatment for his right knee, updated VA treatment records, from April 2012 to present, must be associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and provide him fully compliant notice as required under applicable laws, regulations, and legal precedents. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); and Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice must include information regarding TDIU, to include a specific request for a properly completed VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). 2. Contact SSA and request complete copies of any decision or determination with respect to the Veteran's application for SSA benefits, as well as copies of all supporting documentation. If such records do not exist or are otherwise not available, such must be certified in writing. 3. Obtain complete updated VA treatment records from VAMC Wichita, and all associated clinics, for the period since April 2012. 4. After the records are associated with the claims file, schedule the Veteran for an appropriate VA examination to determine the nature and current level of severity of his service-connected degenerative status post ligament repair and degenerative joint disease of the right knee. All indicated studies, including radiological testing, should be conducted. The entire claims folder (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA eFolder) must be made available to and reviewed by the examiner. The examiner should fully set forth all current complaints, pertinent clinical findings, and diagnoses. A complete medical history should be elicited. The examiner is requested to give an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the service-connected right knee disorder precludes the Veteran from engaging in a substantially gainful occupation, including manual and sedentary positions. Consideration may be given to his occupational experience, education, and training, but age and any non service-connected disabilities should not be considered. The opinion provider should cite to the medical and competent lay evidence of record and explain the rationale for all opinions given. 5. After undertaking any other development deemed appropriate, the RO should readjudicate the issues on appeal, to include TDIU. If any benefit sought is not granted, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded an opportunity to respond. 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. 2013). _________________________________________________ MILO H. HAWLEY 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).