Citation Nr: 1340029 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 06-34 080 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased disability evaluation for chondromalacia of the left knee, currently rated as 20 percent disabling. 2. Entitlement to an initial disability evaluation in excess of 10 percent for degenerative joint disease of the left knee. 3. Entitlement to an initial disability evaluation in excess of 20 percent for status post meniscal repair and partial meniscectomy of the right knee. 4. Entitlement to an effective date prior to January 26, 2004, for a total disability rating based on individual unemployability (TDIU) to include on an extraschedular basis under 38 C.F.R. § 4.16(b). ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran had active service from January 1975 to January 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. These claims were most recently remanded by the Board in July 2012 for further evidentiary development. 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's claims were most recently remanded in July 2012, so that VA may associate with the claims file a letter the Veteran authored on January 3, 2011 concerning his November 2011 VA examination. He also indicated that he submitted a letter written by his wife regarding the same matter. The Veteran described these letters as "crucial to the case" and he believed that they needed to be read before any decision could be made on the matters. The Board remanded the claims in an effort to obtain the above described letters. In September 2012 correspondence, VA notified the veteran that they were unable to obtain the January 2012 letters from the Veteran and his wife and that he may submit them himself. The Veteran resubmitted the letters in October 2012. Based on the letters submitted by the Veteran, in December 2012 and March 2013 the RO/AMC deferred a rating on the matters so that the Veteran would be scheduled for a VA examination for his service-connected bilateral knee conditions by an orthopedic specialist as directed by prior remands. Subsequent correspondence reflect that there was a discussion as to which facility could accommodate the request for the examination in which it was finally determined that the Montgomery VA Medical Center (VAMC) would perform the examination. In the interim, the Veteran canceled examinations scheduled in January and February 2013 as he indicated that his wife was having surgery and that he was out of town. It appears that the most recent examination was scheduled in April 2013, in which the Veteran failed to report. In correspondence received in May 2013, in response to the supplemental statement of the case, the Veteran reported that he repeatedly called prior to the examination to let someone know that he would be unable attend and needed to reschedule the examination. He indicated that his wife is a paraplegic and around the time of the scheduled examination, she developed major wounds and he was unable leave her alone so that he could attend be examined by VA. He expressed his interest in rescheduling another VA examination. Inasmuch as there is evidence of good cause for the failure to report for the VA examinations, additional efforts to schedule new examinations are warranted. Cf. 38 C.F.R. § 3.655 (2013). Additionally, the record reflects that the Veteran has periodic complaints of knee pain and any relevant VA treatment records since December 2011 should be obtained in light of the remand. 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992). Regarding the claim of entitlement to an earlier effective date for TDIU, in the November 2004 rating decision on appeal, the RO awarded entitlement to a TDIU effective on January 26, 2004, based on the Veteran meeting the percentage requirements for a TDIU rating on that date. See 38 C.F.R. §§ 4.16(a), 4.25. At that time, the Veteran was service-connected for major depressive disorder associated with chondromalacia status post left knee injury, rated as 30 percent disabling, effective January 26, 2004; left knee chondromalacia, rated as 20 percent disabling, effective September 17, 1993; left knee degenerative joint disease, rated as 10 percent disabling from August 7, 2000; right knee status post meniscal repair and partial meniscectomy, rated as 20 percent disabling from March 20, 2003; and chronic skin rash of the lower extremities, rated as 10 percent disabling from March 20, 1003. He was assigned a combined 70 percent disability rating effective January 26, 2004 (with a bilateral factor of 3.6 percent for diagnostic code 5257). The Veteran expressed disagreement with the effective date assigned for entitlement to a TDIU. Specifically, the Veteran has requested an effective date back to when he filed an increased rating claim in August 2000. At the time of the August 7, 2000 claim, the Veteran argued that he was entitled to an increase in his disability rating due to the fact that he was no longer able to get or keep a job in his field due to his knees. Prior to January 26, 2004, the combined evaluation for compensation was 50 percent disabling from March 20, 2003 (with a bilateral factor of 3.6 for diagnostic code 5257) and 30 percent disabling from August 7, 2000. Consequently, prior to January 26, 2004, the Veteran's combined service-connected rating was less than 70 percent, even with consideration of the bilateral factor for the bilateral knees from March 20, 2003. See 38 C.F.R. §§ 4.16(a), 4.25, 4.26. Therefore, prior to January 26, 2004, the Veteran does not satisfy the threshold minimum percentage rating requirements for a TDIU rating under the provisions of 38 C.F.R. § 4.16(a). The Board notes that as mentioned in prior remands, the current increased rating claims for the Veteran's bilateral knee disabilities are inextricably intertwined with the question of entitlement to TDIU, and the increased rating issues must be addressed prior to determining whether the Veteran is entitled to TDIU. However, the Board also notes that the Veteran also appears to be seeking an earlier effective date for a TDIU rating on an extraschedular basis prior to January 26, 2004 and this matter must also be addressed after the intertwined issues are adjudicated. With regard to an extraschedular rating, even if the ratings for the service-connected disabilities do not meet the percentage standards set forth in 38 C.F.R. § 4.16(a), a TDIU may nonetheless be assigned if it is shown that the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. In such a case, the RO should submit the case to the Director, Compensation and Pension Service for extra-schedular consideration. 38 C.F.R. § 4.16(b) (2013). Accordingly, the case is REMANDED for the following action: 1. After obtaining any necessary authorization from the Veteran (i.e., a completed and signed VA Form 21-4142) and any additional information deemed necessary, the RO/AMC should request any and all medical records pertaining to any additional treatment he has received for his service-connected bilateral knee disabilities and any VA treatment records dated from December 2011 to the present. Any and all negative responses should be properly documented in the claims file, to include preparing a memorandum of unavailability and following the procedures outlined in 38 C.F.R. § 3.159(e), if appropriate. 2. After obtaining any additional treatment records, schedule the Veteran for a VA orthopedic examination by a doctor specializing in orthopedic practice, to determine the severity of the Veteran's service-connected bilateral knee disabilities. The relevant evidence in the claims file and Virtual VA should be made available to and reviewed by the examiner. If an examiner specializing in orthopedics is not available at the local RO, the Veteran should be scheduled for an examination at the nearest location where such an examiner is available. All testing deemed necessary must be conducted and results reported in detail, to include McMurray and Lachman testing. Range of motion testing must also be conducted with a goniometer for accurate measurement of limitation. Based on the review and the physical examination, the orthopedic specialist is asked to render opinions as to the following for each knee: (a) Does the knee exhibit weakened movement, excess fatigability, incoordination, or pain on use attributable to the service-connected disability? If feasible, the examiner should note the degree of additional range of motion loss due to these symptoms, or more specifically, should note the degree of movement at which any such symptoms begin. (b) Does pain significantly limit functional ability during flare-ups or when the knee is used repeatedly over feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. With respect to the subjective complaints of pain, for each knee, the orthopedic specialist is requested to specifically comment on: i. Whether pain is visibly manifested on movement of the joint; ii. the presence and degree of, or absence of, muscle atrophy attributable to the service-connected knee disabilities; iii. the presence or absence of changes in condition of the skin indicative of disuse due to the service-connected knee disorder; and iv. the presence or absence of any other objective manifestation that would demonstrate disuse or functional impairment due to pain. (c) The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's service-connected disabilities prevented him from obtaining and keeping employment for which his education and occupational experience would otherwise qualify him for the appeal period from August 7, 2000 to January 26, 2004 (prior to January 26, 2004, the Veteran is service-connected for left knee chondromalacia and left knee degenerative joint disease effective December 7, 2000, and for right knee status post meniscal repair and partial meniscectomy, and chronic skin rash of the lower extremities, effective March 20, 2003). 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, if the Veteran's combined service connected disability rating does not meet the requirements of 38 C.F.R. § 4.16(a) for any portion of the appeal period from December 7, 2000 to January 26, 2004, the claim for TDIU should be referred to VA's Director of Compensation and Pension for adjudication in accordance with 38 C.F.R. § 4.16(b). 4. After the completion of directives 1-3 above, if any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then return the case to the Board, if otherwise in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. The purpose of the examination requested in this remand is to obtain information or evidence (or both), which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2013) failure to cooperate by attending the requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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). _________________________________________________ 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) (2013).